Skip to Content
Call Us Today! 888-258-8049

They Searched My Car - Can They Do That??


Over the years, I have represented numerous clients on drug possession (or drug trafficking) charges, which stemmed from a traffic stop, and a subsequent search of the vehicle. Invariably, the client wants to know whether the search was lawful and, if not, what remedies are available. This post presents an overview of the circumstances under which a law enforcement officer may lawfully search the interior of a vehicle.

  • What is a search?

The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. Generally speaking, the Fourth Amendment only applies to "government actors" (i.e. searches or seizures performed by police officers or those acting as agents of the police) and not private organizations or individuals. If, for example, your step-father finds drugs while going through your car, calls the police, and hands the contraband over upon their arrival, there is no Fourth Amendment issue presented.

Whether an action by law enforcement is a "search", and therefore subject to Fourth Amendment scrutiny, will depend on whether the officer(s) have infringed upon the premises, property, or information in which a person has a "reasonable expectation of privacy". In assessing whether a legitimate expectation of privacy exists, the courts will typically apply a two prong test. The first prong entails a determination as to whether the individual, whose person or property was searched, actually and genuinely expected privacy. This is referred to as the subjective prong. The second entails a determination as to whether a reasonable person, under like or similar circumstances, would have expected privacy in the premises or objects searched. This referred to as the objective prong. If there is no expectation of privacy, then there is no search. It has been held, for example, that a person no longer has an expectation of privacy in the contents of their garbage bags once the bags have been placed at the curb for routine trash pick-up.

Generally speaking, a person has an expectation of privacy with regard to the interior of his or her vehicle, including the contents of any containers found therein and that expectation is objectively reasonable. That being said, the search of a person's vehicle must be done pursuant to a valid search warrant, or pursuant to one of the few recognized exceptions to the warrant requirement.

  • Search Warrants

A search warrant is an order issued by a "neutral and detached magistrate" (a fancy legal phrase for a "judge") to conduct a search. Search warrants may authorize law enforcement to search a home, a storage shed, an automobile, or even to listen in on phone conversations. A warrant must be supported by probable cause. This means that the officer seeking the warrant must have probable cause to believe that the fruits or instrumentalities of a crime will be located in the area or property to be searched. Mere suspicion is not sufficient to satisfy the "probable cause" standard, but absolute certainty is not required either. Probable cause can be based on actual observations of the officer, on reliable information provided by sources whose veracity has been verified, or a combination of the two. The application for a warrant must be sworn to and the warrant must describe with particularity the persons or property to be searched.

Defects or irregularities in a search warrant, or in its execution may be a basis to have items obtained pursuant to that warrant suppressed. When evidence is "suppressed", it cannot be used against the individual, who was the subject of the search, in a subsequent prosecution. This is not, however, always the case. There is a "good faith" exception which, under certain circumstances, will preclude evidence from being suppressed or excluded. This doctrine typically applies where the police did not follow proper procedures in obtaining or executing a search warrant, but were acting in good faith regardless. The "inevitable discovery" doctrine may also be used, in certain circumstances, to preclude the suppression of otherwise excludable evidence. This doctrine applies where it can be shown that the evidence would have been lawfully obtained regardless of whether there was a warrant and whether proper protocols were strictly complied with.

Both the United States Supreme Court, and Florida courts, have recognized that individuals in automobiles have a "reduced expectation pf privacy" because automobiles are readily mobile. In the time it takes to obtain a warrant, the person could simply drive away and thereby thwart law enforcement's efforts to obtain contraband from within it. Also, automobiles typically don't act as repositories for personal effects in the same way a home or office does.

  • The Stop

Before a police officer may search a vehicle, the vehicle must first be lawfully stopped. In many instances, this will occur pursuant to a traffic stop. If the officer observes a moving violation, such as running a stop sign or speeding, he or she may stop the vehicle for the purpose of issuing a traffic citation. Non-moving violations (i.e. not wearing your seatbelt) may also justify a traffic stop. You should know that the threshold requirements for stopping a vehicle are less than what would be required to justify a stop under other circumstances (i.e. detaining a person on the street); if the officer believes, based on his or her observation of the driving pattern, that the driver may be "sick, injured, or experiencing mechanical difficulty", a stop is authorized (even where no traffic violation has occurred).

Of course there may be other instances where no affirmative act on part of law enforcement is required including, for example, where contact is made with a vehicle that is parked on the street or in a public parking lot.

What follows are the circumstances under which the police may lawfully search a person's vehicle, the absence of a search warrant, once the officer has lawfully stopped the vehicle or otherwise come into contact with it.

  • Consent

The consent exception applies in all search and seizure scenarios, whether the object of the search is a person, a place or a vehicle. If you give a police officer permission to search your vehicle, following a traffic stop, then the officer may lawfully do so. Of course, consent to search must be freely and voluntarily given; it cannot be the result of coercion. Often times, the officer will have the vehicle's owner, or person having custody of it, sign a consent to search form to verify that (1) permission was given; and (2) it was given freely.

That a person is unaware of their right to refuse to allow the search or seizure will not otherwise render the search invalid.

Also, a warrantless consent search is not valid if the officer exceeds the scope of consent. If, for example, you give permission to search the passenger compartment, but not the trunk, and the officer searches the trunk, any contraband found in the trunk would be suppressible (assuming the officer lacked probable cause to search there).

  • Plain View

If the vehicle is lawfully stopped, a police officer may seize contraband observed in plain view. Contraband includes, for example, drugs, stolen property or other evidence of the commission of a crime. The seizure of these items may result in the arrest of the vehicle's occupant(s) and may justify a more intensive search of the vehicle.

To be valid, a plain view search requires that (1) the officer be lawfully present at a place where the contraband can be seen; and (2) the officer must observe the contraband from a lawful vantage point. The item's status as contraband must be readily apparent; the general rule is that the officer cannot move or manipulate items to get a better view.

For example, where an office comes upon a vehicle parked in the street, shines a flashlight inside, and spots marijuana sitting on top of the center console, that officer may seize the contraband (this was a case I had a couple of years back). Because the vehicle is parked in a public roadway, the officer can lawfully be there. The use of a flashlight to illuminate the vehicle's interior would not render the "vantage point" unlawful. Use of ordinary household items such as flashlights to see what cannot be seen with the naked eye alone will not typically render the search unreasonable.

  • Probable Cause

If the officer has probable cause to believe that contraband or other evidence of a crime may be located in a lawfully stopped vehicle, and there exist "exigent circumstances" sufficient to justify an immediate search (without a warrant), the officer may proceed accordingly. Once again, there is a reduced expectation of privacy with regard to automobiles because they are readily mobile. It is for that same reason that the circumstances are usually construed as "exigent".

Similar principles apply where the officer has probable cause to believe that there is a dangerous weapon inside the vehicle.

You should also be aware that police officers may search a vehicle when they detect the odor of burnt or fresh marijuana emanating from inside. If you are going to smoke pot, don't do it in your car folks - it's just common sense. I cannot tell you how many drug cases I have had involving the odor of burning marijuana as the basis for the search.

  • Incident to Arrest

​Florida courts have routinely held that a vehicle may be searched by law enforcement officers where one of the occupants is lawfully arrested. No warrant is required here and any contraband seized pursuant to a search under these circumstances may be used in a subsequent prosecution.

  • Inventory Searches

If the driver of a vehicle is arrested, and the vehicle is impounded, the police may conduct what is called an inventory search. This is different from a search incident to arrest. In theory, an inventory search is not conducted for the purpose of ferreting out criminal activity or contraband; it is administrative in nature and done to account for the owner's property so that it may be returned to him or her. If contraband is located, there is no Fourth Amendment issue and the items can be used in a subsequent prosecution. The "search" is reasonable, even in the absence of a warrant or probable cause because of its "administrative" purpose.

  • Standing

Standing is a concept that must always be examined in these scenarios. Simply put, a person's right to challenge a search or seizure depends upon whether that particular person's Fourth Amendment rights were violated. In other words, the person asserting a violation must have had an expectation of privacy in the premises or items searched. If you are merely present in a house when a search occurs, it is unlikely you will be able to challenge the validity of the the search. If you were an overnight guest, however, you would have an increased expectation of privacy and likely would. In a vehicle, the general principle is that all occupants are considered seized for Fourth Amendment purposes, not just the driver.

The bottom line here is obvious - if you don't carry drugs or other contraband in your vehicle, you will have nothing to worry about in the event you are stopped. If you do, and you are stopped, the police cannot search your car without a warrant, unless one of the aforementioned scenarios exist. Otherwise, any illegal items seized from your vehicle are suppressible. In many instances, the suppression of these items will result in the termination of prosecution. If the violation is clearly apparent, the charge may never be filed in the first place.

As always, I hope these posts are helpful. More specific questions should be directed to an experienced St. Petersburg / Clearwater / Tampa area criminal defense attorney.