For those of you who read my “When can an Idaho police officer (fill in the blank)” blog post, you will recall that I made a list of questions about what it is exactly that the police can do. One of those questions was “When can a police officer search my car?” For those of you who are not from Idaho, the law that I am going to cover is predominantly handed down by the United States Supreme Court and therefore applies to all States. The States are required to afford at least as much protection as the Federal government, and are allowed to offer even more. Check with a local attorney regarding your rights in your particular state.

I have decided to answer the car search question first, since as a criminal defense attorney in Boise, Idaho, it is this question that comes up the most often, and it comes up the most often because it happens so frequently, and it happens so frequently because the exceptions have been interpreted by the courts so broadly that police can search your car without a warrant under almost any circumstance.

Remember in my prior post about the Warrant Requirement, I said that the general rule is that if the police are going to search your “persons, houses, papers and effects” that they will need a warrant. But there are exceptions to the warrant requirement, so many exceptions that the they have nearly swallowed the rule.

The United States Supreme court has decided that motor vehicles deserve a reduced expectation of privacy. And in many ways this makes sense. You do not expect the same level of privacy driving down the street in your car that you do when sitting on your couch at home. If someone stares at you through the window in your home, your are naturally going to feel more violated than you would if someone stared at you through your car window as you are driving down the road.

There are general exceptions to the warrant requirement that apply to searches of cars. These exceptions apply whether the search is done of a car, a house, or any other type of search. Those exceptions are exceptions like the exigent circumstances exception, the search incident to an arrest exception, and the police inventory exception. We’ll discuss those exceptions in future posts. However, there is an actual automobile exception. This exception has been carved out by the courts specifically for cars. Of all the exceptions to the warrant requirement, this exception is the most sweeping.

I won’t take you on a trip through the history of the development of the automobile exception as it exists today, just know that there is a long history here, and the rule is still developing.

The general automobile exception allows a police officer to search a car when the officer believes that there is “probable cause” that the vehicle contains evidence of a crime. Fortunately, the probable cause requirement limits the scope of when a police officer can search your vehicle.

Probable cause generally means that the investigating officer has a reasonable belief that a person has committed a crime. With regard to the probable cause required for searches, it means a reasonable belief that evidence of a crime or contraband would be found in a search.

The Warrant Requirement, that we talked about previously, required that a law enforcement officer request a warrant from a judge, and the judge would decide whether there was probable cause that a search would turn up evidence of a crime. The automobile exception now places that decision making power in the hands of the investigating officer.

What this means is, an investigating officer gets to make the decision, on scene, whether he has probable cause to search your vehicle or not. There is nothing you can do about his decision at this point. You do not get to call an attorney to appeal his decision. You will have little success in convincing the investigating officer that he does not have probable cause to search you car.

What should you do if an officer asks for consent to search your car? First, if the officer is asking you if he can search your car, then that could mean one of two things. It could mean that he has probable cause to search your car and is just being nice by asking, or it could mean that he does not have probable cause to search your car and is attempting to search your car pursuant to a different exception to the warrant requirement, namely the consent exception to the warrant requirement. If the owner of a vehicle consents to the search of their car, then no warrant is required, and no probable cause finding is required either. All of those requirements are waived by consenting to the search. Officers often ask permission, even when they believe they are certain that they have probable cause for the search, just to ensure that their case is solid. They know that if the driver consents, the chances of the evidence ever being suppressed are nil.

What you should do when an officer asks to search your car is a difficult question to answer. On the one hand, if the officer searches you car without probable cause, but pursuant to your consent, and he finds nothing, then no harm done (other than having your right against unreasonable searches and seizures violated). On the other hand, you never know what an officer will find that may give him a basis to charge you with a crime. Prescription bottles that do not belong to you, a weapon that is concealed in violation of the law, illegal drugs from a prior owner of the car. Any number of items could be found in your car that you had never even thought were there, or ever thought could be a violation of the law.

This information of course only makes your decision that much more difficult. If you consent to the search, and the officer finds contraband, then your initial consent may lend believability to an argument that you did not know the items were there (I would not put a lot of faith in an officer believing your denial though, he likely hears the same denial by many guilty motorists on a daily basis). If you do not consent to the search, and it ends up that a judge agrees that the search was done without probable cause, then the evidence would be suppressed, and the case against you would be dismissed.

A good rule of thumb is probably to object to an officer searching your vehicle. It is not going to stop the officer from searching your vehicle, but it will provide you with a better case if and when you get to court. When you get to court, if the Judge decides that there was no probable cause to search the car, and that no other exception applied, like the consent exception, then the evidence will be suppressed, and the case against you may consequently be dismissed for lack of evidence.

Of course every situation is different, and normally you should consult with an attorney on a legal issue. The problem with search and seizure issues though is that you will not be given an opportunity to consult with an attorney regarding your rights before your car is searched. So I hope these posts provide some guidance on what your rights are, and what they mean.

If your car has been searched by the police, post your experience in the comments below. I would especially like to hear from those who have had their car searched, and nothing turned up in the search.