Does a cop have the right to search your car?

[HappyLady]

That's probably a silly question, but let me explain.  My 17 year old nephew was driving his mom's (my sister's) car and had forgotten to put the headlights on.  An off duty sheriff pulled him over.  My nephew gave him his license, but didn't know where the registration was so when the cop went to run his license my nephew called my sister to ask where it was.  The cop came back and he was asking my nephew for the registration and my nephew kept telling him to hold on.  Then the cop said something about wanting to search the car and my nephew told him, "Well, it's not my car, but you have no right to search my car."  This was because that's what his father always taught him (his father is very anti government/authority).  The cop then asked my nephew to get out of the car and he wouldn't.  The cop then rips my nephew out of the car and tells him he's under arrest.  He went to handcuff my nephew and my nephew straightened out his arms so the cop couldn't which resulted in the cop throwing my nephew to the ground and cuffing him.

 

I know everything my nephew did was wrong, but I was curious if my nephew/BIL is right in that a cop can't search your car unless of course there's an obvious reason.  The car was searched (the cop had his K9 with him) and nothing was found so it wasn't like my nephew was hiding anything.  After hearing my nephew's version of the story (my sister's version made it sound like my nephew did nothing wrong) I'm on the cop's side, but I was told I'm wrong in that a cop can't search your car for no apparent reason and figured I'd ask here to see if anyone knew for sure.

[Hunter's Moon]

I have always been told to respectfully decline. Now, if he decided to rip me out of the car, I really do not know what I would do. I probably would not resist arrest, though.

 

But, I also would not drive someone's car without knowing where their registration was.

[gingersmom]

I would speak to a lawyer.

[Seasider]

My understanding is that your vehicle is considered an extension of your home, and thus not subject to random search. However, this is based more on popular lore rather than cold hard fact, so now you've got me curious.

[Farrar]

They need probable cause.  But from a practical standpoint, I think the courts usually give cops a pretty wide berth on this and if you really are doing nothing wrong, unless you're trying to make some sort of stand and willing to go through legal hassles to do it, it's better to just give in.  I respect that someone might want to make such a stand though.

 

I'm not clear if there was probable cause here or not.  Saying, "This isn't my car, it's my mom's.  Can you give me a moment to look for the registration?" seems like it shouldn't be cause.  Saying, "Uh, hold on," while you desperately look around the car may look like you're hiding something.

[PinkyandtheBrains.]

Lawyer. Lawyer, Lawyer.

 

 

Doesn't matter who was right or wrong at this point. He needs a lawyer.

 

What is needful to search a car varies by community, but it is pretty easy around here for a police officer to find a legal reason to search.

 

Lawyer.

[Alessandra]

Actually, the police do have a right to search your car, including the trunk, if they have probable cause. Probable cause could be almost anything except racial profiling or, interestingly, traffic stops. So they could search because your nephew 'looked' suspicious, but not because his headlights were out. It is next to impossible to prove that there is not probable cause.

 

Cellphones may also be subject to search, depending on what state you are in. The Supreme Court currently has two such cases on its docket.

 

Btw, you have a right not to consent to the search.

 

Sorry that happened to your nephew - that must have been very frightening.

[Pawz4me]

I *believe* all that's needed to search a vehicle is probable cause.  And in most jurisdictions I'm guessing most judges give LEOs pretty wide latitude on what constitutes probable cause.  And I would guess your nephew's behavior would be deemed to constitute probable cause in most districts.  But those are sheer guesses.

[Aura]

I do not trust cops. Not anymore. There is no. such. thing. as innocent until proven guilty in America. Not anymore. And our justice system isn't justice. It's extortion.

 

Having said that, it's really stupid to sit there and argue with the guy with the gun. The boy handled the situation extremely poorly, and I'm willing to guess that he had not been properly taught how to diffuse a situation instead of making it worse. If the family wants to fight against tyranny (or whatever their views are), they'd better be willing to pay the price and having their son thrown in jail because they've taught him to stand up against the police is going to be the least of their worries.

 

Not from a legal perspective, but from a protecting yourself perspective, what he should have done was:

• diffuse! diffuse! diffuse!
• be polite and answer the questions
• explain what he was doing, why, etc. (talking on the phone)
• sure, refuse the search, but do it politely (and plan on them searching anyway) but at least you've gone on record as refusing
• don't try to resist the arrest, even if it's falsely made, you're more likely to make things worse for yourself

At this point, the best thing he can do is get a lawyer, but he's still gonna get screwed. Now, it's just a matter of how much.

[Erin]

Short answer:  No

 

Probable cause has to be something fairly obvious.  Blowing a positive on a breathalyzer, visible firearms, driving recklessly (not just basic speeding), etc. 

My lawyer father always told me the same thing.  

They ask because they have no probable cause and need your permission to do a search that would be illegal without it.  If you deny them, they then need to get a warrant.

Resisting arrest wasn't smart, but he WAS well within his rights about the search.

 

 

I find it alarming, personally, how many people will fight tooth and nail over the 1st or 2nd amendments, but just hand over the 4th with no second thought!

[kitten18]

It sounds like nephew's behavior could be considered suspicious. I really don't know, but I would guess that might be enough for probable cause.

[Erin]

diffuse,diffuse,diffuse

I agree with this. 

 

His first course of action should have been courtesy and respect.  When asked for the search he should have said, "I'm sorry sir, but I can not grant permission to search a car that isn't even mine."  He should have gotten out of the car.  He should have allowed the arrest.  All very peaceably.  

(Had it been in a squad car, he could also have insisted that the officer's dash cam be on)

 

 

It makes it much easier for the suit against the department.   ;)

 

I'd bet money the officer really didn't suspect anything, he was just intimidating a kid.  That is a good thing most of the time, btw.  It's part of what teaches kids to be cautious in these early adulthood/late teen years.  

It's just that this kid didn't intimidate and it irritated the cop.

[EKS]

Driving without the headlights on can be a sign of being under the influence--that and the kid's sketchy behavior may have pushed the cop over the edge into probable cause land.

[Erin]

More often than not, driving without headlights is an indication of nothing more than an inexperienced driver and/or recently leaving a well-lit parking lot.  I just did the same a few nights ago.

 

 

If he asked, that's a basic indicator that he didn't have probable cause

[ChocolateReignRemix]

More often than not, driving without headlights is an indication of nothing more than an inexperienced driver and/or recently leaving a well-lit parking lot.  I just did the same a few nights ago.

 

 

If he asked, that's a basic indicator that he didn't have probable cause

 

Not always as permission removes any attempt to use lack of probable cause to have the search thrown out.

[Erin]

True.  

However, the easy answer is always "No.  But I'm happy to wait here, sir, while you get a warrant." 

Or, if the cop tells him he has cause, the answer becomes "Of course officer.  I'll stand over here while you do your job.  Since we have no dash cam, I'm going to film with my phone, OK?"

[Berta]

Short answer:  No

 

Probable cause has to be something fairly obvious.  Blowing a positive on a breathalyzer, visible firearms, driving recklessly (not just basic speeding), etc. 

My lawyer father always told me the same thing.  

They ask because they have no probable cause and need your permission to do a search that would be illegal without it.  If you deny them, they then need to get a warrant.

Resisting arrest probably wasn't smart, but he WAS well within his rights about the search.

 

 

I find it alarming, personally, how many people will fight tooth and nail over the 1st or 2nd amendments, but just hand over the 4th with no second thought!

 

Exactly. If the officer had probable cause he wouldn't be asking for permission to search. This is one of the many reasons why I have a dashcam ( http://www.amazon.com/BOOMYOURS-270%C2%B0Rotating-Vehicle-Blackbox-G-sensor/dp/B008GAMNBK/ref=sr_1_5?ie=UTF8&qid=1387123741&sr=8-5&keywords=dash+cam ) running in my car if I am in it.

 

It's fairly obvious that there is a dashcam in play, and might make the officer think twice about violating your rights. It also takes away the "he said, she said" argument. There is audio and video, even a blinker can be heard on the recording. I won't drive my car without it.

[Jenn121]

The cop asked before the the resistance. As soon as he resisted he gave the cop the right to do either a safety search and or a search pursuant to arrest. Cops have more latitude in a traffic stop than a house search due to safety concerns.

[SLT]

Yep. What Jenn said above- DH is a cop, and that was my line of thinking.

[Jenn121]

Yep. What Jenn said above- DH is a cop, and that was my line of thinking.

 

 

Mine is too. :)

[Mergath]

As other posters have said, I'm guessing that when he kept telling the officer to hold on and looking around the car, that made the officer suspicious that he had something illegal in the car.  Which, as I understand it, gives the officer probable cause.  It's frustrating, because if he had told the officer he was looking for the registration, most likely nothing would have come of it.  Parents who teach their kids that police are the bad guys and you should make their job as difficult as possible are doing their kids a huge disservice.

[Pawz4me]

Contrary to what seems to be popular belief here, LEOs aren't quaking in fear or particularly bothered by the threat of a lawsuit.  They hear it all the time.  Even for the (relatively few) suits that are actually filed, it's no big deal.  All municipalities have insurance.  Any complaints filed are funneled to the law firm retained by the insurance company.  It's a very routine matter, and most don't cause any problem beyond an attorney spending about 20 minutes to prepare a motion to dismiss the frivolous lawsuit.  Actually, the attorney won't spend that much time.  His secretary or paralegal will do it.  I used to work for a law firm employed by a company that insured many municipalities, including their police and fire departments, etc.  The overwhelming majority of lawsuits filed make a little money for an attorney and that's about it.

 

And the moral of that story is . . . thinly veiled threats to file a lawsuit are NOT going to help you any.

[Pawz4me]

Exactly. If the officer had probable cause he wouldn't be asking for permission to search. This is one of the many reasons why I have a dashcam ( http://www.amazon.com/BOOMYOURS-270%C2%B0Rotating-Vehicle-Blackbox-G-sensor/dp/B008GAMNBK/ref=sr_1_5?ie=UTF8&qid=1387123741&sr=8-5&keywords=dash+cam ) running in my car if I am in it.

 

It's fairly obvious that there is a dashcam in play, and might make the officer think twice about violating your rights. It also takes away the "he said, she said" argument. There is audio and video, even a blinker can be heard on the recording. I won't drive my car without it.

 

Just remember that a dashcam can be subpoenaed if you're in an accident where you're at fault.  So it's not something that is (potentially) only going to be beneficial.

[Ravin]

My take on the general rules: He had the right to refuse the search. Probable cause was needed to search without consent. He should have told the officer what he was doing when he was looking for the registration. People putting them off and moving around in the vehicle makes officers nervous. He should not have refused to step out of the car, or resisted being cuffed. Officer safety concerns give them latitude for both. Was anything found? What was he arrested for?

 

A lawyer can identify just what legal issues are contestable, etc. with all the facts available.

 

And the mom having an attitude that everything her son did was right and everything the officer did was wrong is not going to help him.

[Erin]

Even for the (relatively few) suits that are actually filed, it's no big deal.

But you CAN get rid of a cop on a power-trip.  (Which, unfortunately is not terribly uncommon)

Though one would have to be a blooming idiot to threaten it during the stop.  :rolleyes:

[QueenCat]

It sounds like nephew's behavior could be considered suspicious. I really don't know, but I would guess that might be enough for probable cause.

 

I was thinking the same thing. When people steal cars, one of the first things they tell cops is that the car belongs to someone else (family member, friend).

 

[Ravin]

True.

However, the easy answer is always "No. But I'm happy to wait here, sir, while you get a warrant."

Or, if the cop tells him he has cause, the answer becomes "Of course officer. I'll stand over here while you do your job. Since we have no dash cam, I'm going to film with my phone, OK?"

Officers can search a car without a warrant. They do have to have probable cause, which is also what's needed to obtain a warrant. It's a warrant requirement exception based on the lower expectation of privacy in a vehicle together with the mobility of it.

[Ravin]

More often than not, driving without headlights is an indication of nothing more than an inexperienced driver and/or recently leaving a well-lit parking lot. I just did the same a few nights ago.

 

 

If he asked, that's a basic indicator that he didn't have probable cause

It can also be an indicator of driving under the influence.

[Erin]

:confused:

Are you following the conversation fully?  That response was in direct reply to someone who had already said the exact same thing.
Not to mention your previous post where I had already said:

 

Or, if the cop tells him he has cause, the answer becomes "Of course officer. I'll stand over here while you do your job. Since we have no dash cam, I'm going to film with my phone, OK?"

[Alessandra]

Officers can search a car without a warrant. They do have to have probable cause, which is also what's needed to obtain a warrant. It's a warrant requirement exception based on the lower expectation of privacy in a vehicle together with the mobility of it.

Exactly.

[Danestress]

Sorry. May post in this later.

[MommyThrice]

Something that hasn't been mentioned... officers DO NOT need probable cause IF you give them permission to search.  Same with your home.  If they ask if they can search, you should always say "no" (respectfully!)  Saying "yes" allows them to go on a fishing expedition and use anything they find against you.

 

If they do have probable cause, they can/will search even without your permission, but they very well may skip it without consent.  

[Erin]

Actually that has been mentioned.  Several times, even.   ;)
However, it's important enough it bears repeating.  

 

Some people get all wound up about the 2nd amendment, for others it's the equal protection clause of the 14th....Mine is the 4th.  

The right to privacy is far more important than most people seem to realize.

[Danestress]

A cop needs probable cause to search a car, but does not need a warrant.

 

The cop was probably protecting himself asking your nephew to get out of the car. Your nephew experienced the predictable results of driving dangerously without having registration available and then not complying with the officer's requests.

 

If a cop searches a car without probable cause, the fruits of that search are inadmissible. But your nephew didn't have anything illegal in the car, so that is not the issue.

 

Let us know what happens.

[songsparrow]

A cop can't search your car for no reason.  He must be able to articulate probable cause for the search.  (Well, technically, he can search the car for no reason, but if he is unable to articulate probable cause for the search, then any evidence of a crime that he may find will be inadmissible in court and it may be possible to complain to or even sue the police department for the illegal search.)  He can, however, request permission to search for no reason, and if permission is granted then he may search and any evidence of a crime that is found will be admissible in court.  

 

If the cop is wise, even if he believes he has probable cause, he will still request permission to search.  If he does not ask for permission and it later turns out that a judge decides he did not have probable cause, the results of the search will be inadmissible.  But if he does ask for permission and it is given, the question of probable cause never arises.

 

I am not sure whether, or under what circumstances, you can decline a search of a car that is not yours.  You can certainly clearly state that you are not consenting to the search.  But I believe it would be best to consult a lawyer to discuss the facts of such a case.

 

If I were the cop in this case, based on only the facts given in the OP, I would make the argument that I had probable cause that the car was stolen by your nephew.  My evidence for that would be the facts that your nephew was unable to produce the registration when requested, and that he admitted that the car was not his.    

 

Once your nephew was asked to get out of the car and refused, he escalated the situation into a whole new ball of wax.  

[Hunter's Moon]

Another thing that comes to mind is, when a police officer approaches a car, even on a routine traffic stop, they have no idea what they will be facing. It is never a good idea to rummage while the police officer is approaching. 

 

Frantically rummaging while giving no explanation is probable cause enough, I think. 

[LibraryLover]

link below.

[LibraryLover]

I've had my kids watch this:

 

 

 

 

 

These are clips. The whole things is online, although I can't seem to find it right now. OK, I see it. After the first clip plays, it shows the 27 parts of the video. ;)   It's worth it. Getting stopped by the police is scary, and you really have to think carefully under pressure.

[Renee in NC]

DISCLAIMER: This is not legal advice, just someone's opinion about the facts as given here.

 

Asked a cop friend, and he said:

 

Cannot search vehicle in NC without consent or warrant, even if "incident to arrest."  Says that used to be true, but the NC Supreme Court ruled it unconstitutional.

 

Said the cop could easily have just run the VIN to see if it matched registration and insurance info through DMV.

 

Said cop created an arrest by being pushy.

 

I consider him a good cop.  He says that almost all situations can be resolved through talking, without the need for an arrest or force.  He thinks there are a lot of cops who really shouldn't be cops.  He said he would NOT have handled it this way.

 

ETA:

 

He said you can always ask the cop to call his supervisor.

 

He also said that in NC you have the right to resist if you know in fact that you are innocent of the crime you are being accused of.  He said that generally getting tazed is not worth it.  In the end, though, you COULD sue the agency, the cop, and his supervisor.

 

But he is pretty adamant that the cop in question was wrong.

 

 

[Bootsie]

Driving without the headlights on has been used as a gang symbol where I live.  

 

I have heard of cases where "probable cause" is interpreted fairly broadly: things like failure to use a blinker, changing lanes too close to an intersection, stopping over a crosswalk line at an intersection, etc.  These situations have always seemed to be targeted at teen drivers in my neighborhood.  

 

Unfortunately, these situations can end tragically.  Nearby, we had a college student shoot and killed by a police officer.   

http://www.cnn.com/2013/12/10/justice/texas-campus-officer-shooting/

 

In the week before that, we had a woman attacked by a police officer who forced her in the back of his vehicle after a routine traffic.  And, we had another woman who was pulled over by a cop impersonator who attempted to attack her.  The police department had sent out information telling people in the area to be on guard because the cop impersonator had not been apprehended.  This happened about 1 1/2 miles from where the college student was shot.  I have wondered if the student might have been wondering if he was being stopped by a real cop.  

[Mergath]

Asked a cop friend, and he said:

 

Cannot search vehicle in NC without consent or warrant, even if "incident to arrest." Says that used to be true, but the NC Supreme Court ruled it unconstitutional.

 

Said the cop could easily have just run the VIN to see if it matched registration and insurance info through DMV.

 

Said cop created an arrest by being pushy.

 

I consider him a good cop. He says that almost all situations can be resolved through talking, without the need for an arrest or force. He thinks there are a lot of cops who really shouldn't be cops. He said he would NOT have handled it this way.

Maybe, but I think it's pretty hard to make that call with facts that he's getting fourth-hand.

[Renee in NC]

Maybe, but I think it's pretty hard to make that call with facts that he's getting fourth-hand.

 

I think that is obvious.  He is answering the question as it was asked.  In this scenario, as it was written here, he says the cop was wrong.  It is, of course, only his opinion.  He'll tell you he isn't a lawyer, and he doesn't give legal advice.  I think we all realize that we are only getting one side of the story.

[Danestress]

DISCLAIMER: This is not legal advice, just someone's opinion about the facts as given here.

 

Asked a cop friend, and he said:

 

Cannot search vehicle in NC without consent or warrant, even if "incident to arrest." Says that used to be true, but the NC Supreme Court ruled it unconstitutional.

 

 

If a cop has probable cause to think a car contains contraband or evidence, he can search without a warrant in NC.

[Renee in NC]

If a cop has probable cause to think a car contains contraband or evidence, he can search without a warrant in NC.

 

Yes, but they still always try to get consent.  If they don't, they have to be able to articulate WHY they think they have probable cause.  The driver refusing a search is not probable cause.  Driving without headlights in not probable cause.  A cop can't just say, "Probable cause" and it makes the evidence admissable.  

 

ETA: I see I didn't give the total answer he gave when I fist responded.  I went back and looked at the email, and he did talk about probable cause.  Sorry.

[ILiveInFlipFlops]

He also said that in NC you have the right to resist if you know in fact that you are innocent of the crime you are being accused of.

 

I'm sorry, but I have a VERY hard time believing this is true. I'd love to see some documentation on it if anyone can find it (all I came up with when I Googled was sites telling what to do if stopped/arrested). 

 

ETA: And I think the traffic stop was not probable cause. It sounds like the frantic rifling around while the cop was gone was the probable cause. How is the cop to know the kid is not looking for a gun or trying to hide a bag of weed (or worse)? 

 

Why does auto correct keep changing my probable to probably?!

[Renee in NC]

I'm sorry, but I have a VERY hard time believing this is true. I'd love to see some documentation on it if anyone can find it (all I came up with when I Googled was sites telling what to do if stopped/arrested). 

 

ETA: And I think the traffic stop was not probably cause. It sounds like the frantic rifling around was the probably cause. How is the cop to know the kid is not looking for a gun or trying to hide a bag of weed (or worse)? 

 

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.†(State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

 

http://www.constitution.org/uslaw/defunlaw.htm

 

The original case Mobley case was in 1954, so I can't find the actual opinion online.  I did find a recent case where it was cited and that is did NOT apply (and it explains why.)  Maybe someone with access to case law can post the opinion?

[ILiveInFlipFlops]

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.†(State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

 

http://www.constitution.org/uslaw/defunlaw.htm

 

The original case Mobley case was in 1954, so I can't find the actual opinion online.  I did find a recent case where it was cited and that is did NOT apply (and it explains why.)  Maybe someone with access to case law can post the opinion?

 

That's unlawful arrest, though, and is different from simply knowing you're innocent. The officer has to act on what s/he knows and sees. If a cop stops you for driving in an illegal or unsafe manner, sees you rummaging in your car for a reason you won't tell him and continuing to do it while he's standing right next to you, asks you to step out of the car so he can search it, and you respond with an attitude and refuse to cooperate, then physically resist him/her, I'm reasonably sure most judges are going to consider that a lawful arrest. 

[Ravin]

Driving without the headlights on has been used as a gang symbol where I live.

 

I have heard of cases where "probable cause" is interpreted fairly broadly: things like failure to use a blinker, changing lanes too close to an intersection, stopping over a crosswalk line at an intersection, etc. These situations have always seemed to be targeted at teen drivers in my neighborhood.

 

Unfortunately, these situations can end tragically. Nearby, we had a college student shoot and killed by a police officer.

http://www.cnn.com/2013/12/10/justice/texas-campus-officer-shooting/

 

In the week before that, we had a woman attacked by a police officer who forced her in the back of his vehicle after a routine traffic. And, we had another woman who was pulled over by a cop impersonator who attempted to attack her. The police department had sent out information telling people in the area to be on guard because the cop impersonator had not been apprehended. This happened about 1 1/2 miles from where the college student was shot. I have wondered if the student might have been wondering if he was being stopped by a real cop.

You're confusing reasonable suspicion, needed for an officer to pull a vehicle over for a traffic stop, with probable cause, needed to arrest a person or search a vehicle. It's complicated and confusing, which is why talking to a lawyer might be helpful.

[SKL]

I probably would have said, "officer, I'm asking my mom where her registration is, would you like to talk to my mom?"

 

And here is a question:  if you are driving someone else's car (other than a rental car), how do you even have a right to consent to a search?  If I took the cops to my neighbor's house and let them in, has consent to search occurred?

 

I do understand how this could happen to someone young and inexperienced.  Hopefully it won't become too big of a deal.

[Danestress]

Yes, but they still always try to get consent. If they don't, they have to be able to articulate WHY they think they have probable cause. The driver refusing a search is not probable cause. Driving without headlights in not probable cause. A cop can't just say, "Probable cause" and it makes the evidence admissable.

 

ETA: I see I didn't give the total answer he gave when I fist responded. I went back and looked at the email, and he did talk about probable cause. Sorry.

Yeah, I am not commenting on whether this cop had probable cause in the OP's case. I don't know what the cop would say he thought the issue was. Often cops search areas within reach of a driver and can get away with that when they couldn't justify searching, say, the trunk. I suspect the young man may have made that more likely by not producing a registration and, perhaps, rummaging around looking for it. But obviously I can only guess.