When can Police Search My Car for Drugs in South Carolina?
Can police search my car without a warrant?
If so, when is that okay?
The Fourth Amendment protects against unreasonable searches and seizures, but what does that mean exactly?
In this article you will learn:
- how and when the Fourth Amendment protects against police searches of your car, and
- some of the many exceptions to the Fourth Amendment’s warrant requirement.
The Fourth Amendment Protection Against Unreasonable Searches
The Fourth Amendment to the United States Constitution and Article I Section 10 of the SC Constitution guarantees us the right to be free from unreasonable search and seizure by government agents:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article 1 Section 10:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.
They don’t, however, protect against any searches – only unreasonable searches.
For example, if the police want to search your home, they must get a search warrant signed by a judge after convincing the judge there is probable cause to search. Homes are given much greater protection than vehicles, however.
There is no warrant requirement for a motor vehicle – if the police believe they have probable cause, they can go ahead and search under what is called the automobile exception to the search warrant requirement.
Because motor vehicles are mobile, the courts have found that it is not practical for a police officer to risk the loss or destruction of evidence by forcing them to seek a search warrant while a motorist is detained on the side of the road.
There are many other exceptions to the Fourth Amendment’s protections against unreasonable searches – when can police search your car for drugs without a warrant?
When Can Police Search my Car for Drugs?
There are far too many exceptions to the Fourth Amendment’s warrant requirement (many attorneys would say that “the exceptions have swallowed the rule”) for me to discuss here, but let’s take a look at some of the more common exceptions that police rely on to search people’s vehicles.
Obviously, if you tell a police officer they have your permission to search your car, you can’t complain later and say your rights were violated….
…or, can you?
Police will almost always ask for your consent before they search your car for drugs, because it’s just easier that way. In most cases, there is no Fourth Amendment violation if you give consent to search. But what if the consent was coerced?
If you were coerced into giving consent (a high standard to meet), the consent is not valid and any evidence found shouldn’t be allowed at trial.
Or, what if you gave consent after you were detained on the roadside for 20 minutes? Once an officer has written the citation and run a computer check for warrants, he/she cannot continue to detain a motorist. The traffic stop enters a second, unconstitutional detention, the consent is not valid, and any evidence found shouldn’t be allowed at trial.
You have the right to say no – no person should ever consent to a search of their vehicle, even if they have nothing to hide. Refusing to allow law enforcement to detain you on the side of the road while they tear apart your car and look through your personal belongings does not make you look guilty.
It makes you look like a smart person who knows their rights.
If a police officer has probable cause to believe that there is evidence of a crime in your vehicle, they can search your vehicle without getting a search warrant first.
For example, if a police officer says they smell marijuana standing at your car’s window, they have probable cause to search.
A drug dog “alert” is also probable cause in most cases. If a drug dog alerts on your vehicle, the police can then search for drugs.
The officer does not need probable cause to walk a drug dog around your car, unless you have to wait an unreasonable amount of time for the dog to get there – an unconstitutional “second detention” without probable cause that should result in the suppression of any evidence they find.
Although the officer makes the initial decision that there is probable cause to search, your defense lawyer can challenge the search in court and have a judge “overrule” the officer’s decision. If the court finds that there was no probable cause, any evidence found should be suppressed at trial.
A police officer can search your car for weapons if they have a “reasonable, articulable suspicion” that “crime is underway.”
This is like “stop and frisk,” or a Terry search – if a police officer has a reasonable suspicion that there is criminal activity, they can frisk a person for weapons.
In a vehicle, the officer can ask you to step out of the vehicle (despite what some misguided YouTube videos say, the officer can always ask you to step out of the vehicle), they can frisk you, and they can search your “grab area” for weapons.
But wait, they’re searching for weapons, not drugs, right? What if they just happen to see drugs while they’re searching for weapons?
The Plain View Exception
If an officer sees contraband or evidence of a crime while searching for weapons, there is no Fourth Amendment violation if the officer’s initial search was justified by a reasonable, “articulable” suspicion.
Also, any evidence of crime or illegal items (drugs) that an officer sees in “plain view” is fair game – the officer does not need probable cause or a search warrant to seize the evidence and possibly arrest you.
For example, you get pulled over for speeding. The officer walks up to your car window, shines the flashlight into your car, and says, “What’s that?” The Fourth Amendment does not prevent the officer from seizing the bag of weed that was lying on the floorboard and arresting you for it if it was in “plain view.”
Similarly, there is a “plain feel” exception – if an officer feels something that is easily recognizable as contraband when he is conducting a Terry search, then the officer can pull the item out of your pocket and examine it more closely.
Search Incident to Arrest
When you are placed under arrest, the police can search your person and, in many cases, your vehicle.
They can search your person, because you are going to jail, and they are going to find out what is in your pockets anyway.
When it comes to your vehicle, the police can only search for evidence that is related to your arrest. Under a US Supreme Court decision, Arizona v. Gant, police cannot search your vehicle if it is parked legally unless there is probable cause that there would be evidence or contraband in the vehicle.
For example, if you are being arrested for driving under suspension and you just pulled into your driveway, there is probably not going to be evidence of driving under suspension in your car. Usually, your license is either suspended or it’s not, and the police either saw you driving or they didn’t.
But what if you are on the side of the road and your car is going to be towed?
The Inventory Exception
If your car is going to be towed, the tow truck driver is going to do an inventory of every item found in your car. They need to make a complete record, so they are not accused of stealing anything (and so they won’t steal anything).
If the towing company is going to search your car anyway, the courts have said the police can search your car too. They can thoroughly search every part of the vehicle, without limitation, and they can take as long as they want.
There is no Fourth Amendment protection for a vehicle that is being impounded.
What Should You Do If You’re Stopped by Police in Your Car?
First, what you should not do.
I don’t care what you’ve heard or read online, you do not have the right to refuse to roll down your window, provide your driver’s license, or step out of the car when asked. If you do any of these things, what might have turned into an uncomfortable but temporary police encounter may quickly escalate into a jail time and even violence. So, what should you do?
- Stay calm.
- Comply with the officer’s request for your license and other paperwork.
- You can remain silent if you choose, and you do not have to answer any questions, but be polite about it.
- Your passenger can also choose to remain silent.
- Politely refuse any consent to search (No sir, I do not consent. Please respect my privacy.)
- Your passenger can also refuse to consent to search.
- Did I say be polite? De-escalate the situation and do not raise your voice, threaten, or insult the police officer.
- Once the officer has written the ticket (or warning, hopefully), ask “Am I free to go?”
- Do not engage in conversation with the officer. Once they have written the ticket and they begin to tell you about all the drugs and guns on the highway and why they would like to search your vehicle, Say, “No,” and ask, “Am I free to go?”
Most importantly, if you are charged with a drug offense after a roadside search of your car, get an experienced criminal defense lawyer on your case immediately – there may be Fourth Amendment violations that we can use to get key evidence suppressed, to use in plea negotiations, or to win your case at trial.
Need help with your SC drug charge?
If you have been charged with a drug offense in SC, including in the Lexington, Aiken, Newberry, and Columbia areas, you need an experienced drug crimes defense lawyer on your side as soon as possible.