Vehicle Searches

This series of brief articles is intended to provide readers an overview of what to expect and what to do if they are pulled over in their vehicle by one or more police officers. The objective is to explain in understandable terms when a law enforcement officer can search a stopped vehicle without a warrant. These articles are not intended to be full legal briefs on the intricacies of warrantless vehicle searches; you should seek out an attorney if you find yourself in anything like one of the situations described. 

There are five primary situations in which a vehicle can be searched without a warrant. They are: (1) search pursuant to consent; (2) search pursuant to officer safety; (3) search pursuant to probable cause; (4) search incident to arrest; and (5) inventory searches. This first of five articles will describe the concept of search pursuant to consent.

Article 1: Consent to a Warrantless Search of a Vehicle

  By Joseph J. Pantella, IV, Esq. 

January 3, 2023

The least controversial type of warrantless search of a vehicle is one in which a law enforcement officer is given consent to search it.

What is consent?

Consent can only be given by a person who has actual or apparent authority over the vehicle. Consent is when such a person is asked whether the officer can search the vehicle and the person responds in a way that the officer interprets as a yes.

There are three key items to remember about consent:

(1) It can be refused completely. This means that you do not have to consent to a search regardless of what the officer says.

(2) You can limit the scope of the search. In other words, if you consent, you can control how much of the vehicle is searched, for example searching only the passenger compartment, or looking in the glove box, or anything up to and including a full search of the vehicle and everything in it.

(3) It can be retracted. If the search is ongoing and for any reason you change your mind and don’t want the search to continue, you can simply tell the officer(s) that you withdraw your consent and the search must stop.

What should I do if an officer asks for consent to search my vehicle?

JUST SAY NO! In everyday life, you should never consent to a search of your vehicle. Whether or not you have anything to hide there is only one reason that a police officer wants to search a vehicle—to look for and find evidence of a crime. There is no reason for you to freely give an officer carte blanche to search for something that could be used against you in a criminal proceeding. Why? Because, as will be discussed in subsequent articles, if the officer fears for his or her safety or has probable cause, your consent is unnecessary anyway. You do yourself no favors by opening yourself up to the possibility that an officer will find something, that you may not even know is in the vehicle, that could be used to justify charging you with a crime.

Article 2: Search Incident to Arrest

By Joseph J. Pantella, IV, Esq. 

January 25, 2023

An officer may search a vehicle after one of the vehicles occupants has been arrested. The scope of the search is limited to evidence related to the crime that the officer had probable cause to substantiate the arrest. So, if you are arrested on probable cause of theft of a television, for instance, the officer could search the vehicle for evidence of the crime, that is, the trunk or any place where the television might be stashed. However, it would not be reasonable to search in the glove compartment, or under the seat.

The pressing question is: How do you know you’ve been arrested? Most people envision an arrest as being handcuffed and detained. Unfortunately, it’s not so simple.

In Virginia, you can only be arrested for crimes, that is, acts that qualify as misdemeanors or felonies. (VA Code § 18.2-8) Most traffic infractions are simply violations of public order and are not crimes. This means that if you are pulled over because, for example, you ran a red light or stop sign, or failed to yield, etc., you are not under arrest. Therefore, there cannot be a search incident to arrest. To search a vehicle under these conditions, there must be consent.

There are, however, two crimes associated with vehicle operation that could give rise to a search incident to arrest. These are reckless driving (VA Code § 46.2-868) and driving while intoxicated. (VA Code § 18.2-266) If you are pulled over and told that you were pulled over for either of these crimes, then you have been arrested and a search incident to arrest could occur. Normally an arrest requires a warrant issued by a judge, clerk, or magistrate—see VA Code § 19.2-71—but there are specific instances where an officer can make an arrest without a warrant. See VA Code § 19.2-81. One instance is where there is probable cause to suspect a person was driving while intoxicated (VA Code § 19.2-81(D)), and another is when there is probable cause that the person committed a crime within the officer’s presence (VA Code § 19.2-81(B)). Naturally, if there is another reason justifying arrest, e.g., probable cause for a different crime, or a warrant or capias has been issued for a vehicle’s occupant, then a search incident to arrest may occur also.

What is a search incident to arrest? And what are its limitations?

The answer to this question can get complicated and there is a series of U.S. Supreme Court cases that provide guidance. See, e.g., Chimel, Belton, and Gant. Boiled down, they mean that if you are arrested and but are not restrained and are within reaching distance of the vehicle’s passenger compartment, anywhere you could have reached in the vehicle is fair game for a search. This type of search is sometimes called an officer safety search, because it is intended to provide the officers an opportunity to ensure that there is nothing in the vehicle that the arrestee could access and use to harm them.

However, a search incident to arrest can also be used to search the vehicle when an officer reasonably believes that there is evidence of the crime for which you were arrested for may be found in the vehicle. This type of search does not require that you need to be within reaching distance of the vehicle’s passenger compartment. And it means that any part of the vehicle that might contain evidence of the crime can be searched.

The limitations of a search, then, are twofold. First, if one is within reaching distance of the vehicle a search for weapons can take place. This means that anywhere the arrestee could have reached for a weapon can be searched. For practical purposes this includes the entire passenger compartment. And if you’re driving an SUV, the passenger compartment includes the back storage area. Second, regardless of whether you can reach into the vehicle, it can be searched for evidence of the crime that you were arrested for. 

These limitations are important, because if you were arrested for reckless driving, there is not likely any evidence of the crime in the vehicle. However, if you were arrested for DWI, then a search for alcohol containers, or potentially drugs, it is reasonable to believe that evidence of the crime could be attained from the vehicle.  

Practical Application

Now that you have a little information about search incident to arrest, how can you employ that knowledge? A few suggestions:  

First, don’t volunteer guesses about why you’ve been pulled over. It is the officer’s job to have probable cause for stopping you. Volunteering information just provides more ammunition for them to formulate a reason to conduct a search. The appropriate response is “No officer, why did you pull me over?”

Second, if you’re not sure if you’ve been arrested, ask. And if you have been, ask on what charge(s). At least then you have some indication of the officer’s ability to execute a search and the limitations on that search. And if the officers have body cams or there are other witnesses those questions can go a long way to preventing illegal searches or suppressing evidence.

Third, avoid providing a reason for an officer safety search. Don’t keep a weapon in plain sight in a vehicle. If you have a weapon in the vehicle, it should be safely secured in an area where neither you nor any occupants can retrieve, i.e., not in the passenger compartment.

DISCLAIMER

These entries are far from a complete discussion of the legal principles governing warrantless vehicle searches, if you’ve had your vehicle searched and incriminating information was discovered and are facing criminal liability, contact an attorney.