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Can Police Search Your Car During a Traffic Stop without Your Consent?

Posted on in Criminal Law

IL defense lawyerImagine that you are driving down a suburban street at night, in a rush to get home. Flashing lights appear; you are being pulled over by the police for speeding. The officer stands at your window and asks for your license and registration. As you retrieve those items for inspection, the officer shines a flashlight into your car and spots a bottle of whiskey on the passenger seat. The officer is now wondering whether you are guilty of a more serious offense, such as driving under the influence (DUI).

This is when things get interesting. The officer casually asks, “You mind if I have a look in your car?”—intending to learn if that bottle is open and shows signs that you have been drinking out of it, which would help support a DUI charge. If you agree, you have just consented to a search of your entire car, and anything the police find can be used as evidence against you. Or you have the right to say, “No, I do not give consent for any searches.”

Let us assume that you do not give consent for a search. Can the police officer now legally search your car without your consent?

Police Can Act on Anything in Plain Sight

First off, the police do not have the right to enter and search your vehicle just because you have committed a traffic violation.

However, during a valid traffic stop, the police do have the right to stand outside your vehicle and look in through the windows, including with the aid of a flashlight. Anything in plain sight can be used as evidence against you.

Now, you know that it is illegal to drive around with an open container of alcohol in the passenger compartment of your car. So, for our imaginary situation, assume that the bottle of whiskey has never been opened. You just bought it at the store and were bringing it home.

Having exercised the right to observe what is in plain view in your vehicle, the officer is likely to ask you whether that bottle has been opened or not. If you hand over the bottle to prove it has never been opened, that would free you from the possibility of getting an “open container” ticket on top of that possible speeding ticket.

But suppose we change our imaginary situation. What if the officer could clearly see that the seal on the bottle was broken (in other words, the container was open)? Then would it be legal for the police to search your car?

Police Need Probable Cause to Enter and Search a Vehicle

The police do not need to obtain a search warrant from a judge to search a vehicle if they have probable cause to believe there is evidence of criminal activity in the vehicle.

In our original scenario, with only a sealed container of alcohol visible in plain sight, the police would not have probable cause to search your vehicle.

However, if the police do see evidence of a crime in plain view in your car, such an obviously open container of alcohol or marijuana, then they do have probable cause for a search.

We have made the issues of vehicle search fairly simple for the purposes of this article. However, the matter of probable cause is legally complex and frequently argued in both trial and appeals courts. The totality of the circumstances must be considered.

Talk to a DuPage County Drunk Driving Defense Attorney

If you have been ticketed for a serious traffic violation such as DUI, seek legal advice immediately. Explain the details of your case, including your dialogue with the police and whether your car was searched to an experienced Oak Brook DUI defense lawyer, who can then recommend options for your defense. Call McMahon Law Offices at 630-953-4400.







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