Written by attorney Thomas Gregory Haren

A Primer on Traffic Stop Searches

This guide is re-posted from the Haren Law, LLC website:

The Fourth Amendment protects the people from unreasonable searches and seizures. The police can only search a vehicle at a traffic stop under certain circumstances. In order for a police officer to search a vehicle, he needs either the driver’s consent or “probable cause." An officer has probable cause if a person of reasonable caution would believe that a specific item will be found in the place to be searched. A review of the traffic stop process will better illustrate when the police can and cannot legally search your vehicle.

A traffic stop itself is legal as long as some offense has been committed. This is true even if there are also some subjective motivations behind the traffic stop, such as racial profiling by the officer. This is also true even if the stop is for an arbitrary offense, such as speeding by one mile over the limit. As long as there is a legitimate basis for the stop, it is not tainted by other such factors.

If the driver attempts to flee the police, this will independently provide the police with probable cause to arrest the driver and search the vehicle even if the original reason for the traffic stop was not legally sufficient. Also, attempting to get rid of any evidence or contraband before submitting to police authority will jeopardize Fourth Amendment protections. Anything that is abandoned before the vehicle has pulled over was not technically searched. It is once a driver has “submitted to a show of police authority", he has been seized for the purposes of the Fourth Amendment and is protected against unreasonable searches and seizures.

It does not happen very often in practice, but a driver can be arrested for even minor traffic violations. If the driver is placed under arrest, the vehicle can be impounded and searched to inventory its contents. A warrant is not required for this search, and the police do not need probable cause for such a search either. However, if the driver is not placed under arrest, their ability to search the vehicle is limited. The police can search the vehicle if the driver consents to the officer’ search, or if the police have probable cause to search the vehicle. The driver is not required to consent to a search. However, once this consent is given, the search will be legal regardless of if the police had probable cause for a search. Furthermore, ignorance of the right to refuse is no excuse, and the search will be legal even if the driver was not aware that he could refuse to consent to a search.

Once a traffic stop has been made, a police officer can order the driver out of the vehicle. He is also allowed to pat down the driver for weapons if he has a “reasonable suspicion" that the person may be armed and dangerous. This called a “Terry stop." The required reasonable suspicion for a Terry stop is a much lower standard than probable cause, and the courts typically defer to the officer’s experience, as long as he can articulate specific facts that caused his suspicion. Observations such as the area or streets being known for drug activity, or the driver fitting the profile of an armed and dangerous criminal can be sufficient. This rationale has also been extended to allow a “frisk" of the car for readily available weapons. Since this frisk is only to find readily accessible weapons, it does not give the police the authority to search locked compartments and trunks based upon their reasonable suspicion.

However, it is a common misconception that the police need a warrant to search the trunk or other locked compartments of a vehicle. Warrants are not required. Police can search the whole car and anything inside of it as long as they have probable cause that it contains evidence of a crime. If the police have a reasonable belief that the trunk contains drugs, then they can search it without the driver’s consent. However, absent that probable cause and consent from the driver, the locked areas of the vehicle are off limits.

The police can use a drug sniffing dog to search without first developing probable cause. The Supreme Court has ruled that they are not a search, and that they are “sui generis," or unique. This is because a drug sniffing dog does not reveal anything about the contents except if drugs are present, and you have no privacy right to illegal contraband. If the police have a drug sniffing dog present when they pull you over, you have no legal right to object. If a drug sniffing dog detects contraband, that would provide the police with that probable cause to search the entire vehicle, including locked compartments and the trunk.

The police cannot delay a traffic stop in order to get a drug sniffing dog there. They are permitted to hold a driver at a traffic stop for a reasonable time to investigate the traffic violation and write a citation. If the police detain a driver after they have finished writing the citation, or they take an unreasonably long time to write the citation, that detention is illegal. The eventual dog sniff would be the result of an illegal detention, and any evidence they find based on that sniff would be suppressed. However, if the officer develops “reasonable suspicion" during the traffic stop that passengers of the car possess drugs, then the stop becomes a Terry stop for the purposes of investigating the drug possession. The stop can then be extended for a little while longer to get a K-9 unit there. The courts defer to the police and uphold these Terry stops for a variety of reasons, but there does need to be some additional cause for suspicion beyond the traffic stop itself. Anyone that finds themselves in such a situation should be prepared to litigate the issue to protect their rights.

A drug charge can have serious consequences even if the search was not legal. Don’t face trial without a zealous advocate on your side. If you would like to consult a Cleveland criminal defense attorney regarding a criminal charge, you can contact Thomas G. Haren at Haren Law, LLC at (216) 503-2232.

Please remember this is not legal advice. This is provided for informational purposes only.

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