Automobile Exception
In addition to searches after an arrest, an "automobile exception" to the warrant rule exists that allows officers to stop and search vehicles where the officer determines there is a probability of criminal activity. An automobile exception is allowed because courts have determined that a lesser right of privacy exists in an automobile in contrast to a private residence. Unlike your home, your automobile is typically open to view through its windows, is often parked and left unsupervised and can be moved from place to place.
Does the police officer need probable cause to use the automobile exception?
If an officer has probable cause to believe the driver or passengers of a vehicle are involved in criminal activity, such as possession of illegal drugs, the officer can stop the car and search the vehicle. "Probable cause" means the officer must have a reasonable belief the criminal activity is "afoot" based on objective facts.
EXAMPLE: Probable cause exists if the officer observes open containers of beer being thrown out the window or the car fits the description of one owned by a known criminal. The "automobile exception," as this is known, does not require an arrest before the search begins. However, without probable cause, the search is unreasonable and illegal.
TIP: Evidence found as a result of a search under the automobile exception is admissible in court.
TIP: The automobile exception does not apply to motor homes. They are not considered "vehicles" for the purpose of applying the exception and a search requires a warrant or exigent circumstances (a fleeing criminal running into the motor home, for example).
TIP: An officer can acquire probable cause during a routine traffic stop where there is no arrest. For example, he may observe a handgun in the vehicle as he approaches the driver's side and the driver may appear nervous. In that situation, probable cause has been created as the officer could reasonably believe that criminal activity may have occurred based on his observation of the weapon and the driver's demeanor. The officer can search the car under the automobile exception before he decides to make an arrest.
What are some examples of probable cause?
The officer's experience and training go to determining if probable cause existed to apply the automobile exception to a vehicle search. Some factors might include:
- odor of gasoline, alcohol or drugs
- inconsistent statement by a nervous driver
- furtive or secretive movements by driver
- driver's immediate denial of ownership of anything found in a potential search
- registration or insurance do not match vehicle
- driver's refusal to consent, when other incriminating factors are present
If the drug dog alerts police to the presence of drugs in a vehicle, can it be searched?
Yes. When a drug dog indicates that drugs or other contraband are in a vehicle, the automobile exception applies and the vehicle can be searched.
If an officer finds marijuana on a driver during a frisk, can the vehicle be searched?
Yes. Drugs found on the driver trigger the automobile exception and the vehicle can be searched for additional drugs.
Can my car be searched if it is parked in my driveway?
Yes. If your vehicle is in plain view and law enforcement personnel have probable cause to believe your vehicle was involved in a crime, it can be searched. For instance, if a truck matching your truck's description was reported as being in a hit-and-run accident and you have it parked in plain view with fresh paint scrapes, it can be searched once police officers spot it.
Once my vehicle is searched under the automobile exception, are officers allowed to search me?
No. The automobile exception does not extend to people. It is illegal to search a person based on the sole fact that an automobile is searched.
SIDEBAR: You can be searched once you are arrested.