If you are stopped by a police officer while driving, it is possible that the officer may have legal reasons to search your car. Every stop has different circumstances. You have a constitutional right to privacy and the expectation that your car will not be subject to unreasonable searches and seizures under the Fourth Amendment. In order for the police to search your car, they must either obtain a warrant or meet one of the exceptions to the warrant requirement.
One such exception is the automobile exception. Under this rule, absent a warrant, the search of a vehicle is lawful if there is probable cause to support a search. This search may occur independent of any arrest. Commonwealth v. Johnson 461 Mass. 44, 49 (2011). “Warrantless search of a vehicle is permissible where police have probable cause to believe crime has been or is being committed, and where fruits of crime or evidence related to crime might be found in [the] vehicle” Id. Under this rule, the police have the ability to conduct a search of a vehicle, prior to any arrest and without the exigent circumstance exception to the warrant requirement.
However, the police cannot stop your car on a whim. The officer must have reasonable suspicion of criminal activity in order to stop you, not just a mere “hunch.” Commonwealth v. Bacon, 381 Mass. 642, 643-644 (1980). If the police were not justified in stopping your car, any search they performed thereafter may be illegal and there may be a strong basis to suppress any incriminating evidence discovered by the police.
Search During a Stop
The first instance of possible search during a stop is upon approach and contact with a driver. The officer may view anything in plain sight, and this qualifies as a permissible search, as “once police are lawfully in a position to observe an item firsthand, its owner's privacy interest in that item is lost.” Illinois v. Andreas, 463 U.S. 765, 771 (1983). If you are stopped upon suspicion of operating under the influence, the police may look through your car windows to see whether there are any open containers visible in your car. The police may use this evidence to further investigate whether to arrest you for OUI. Commonwealth v. Walker, 370 Mass. 548 , 557 (1976).
During the initial stop, law enforcement generally lacks probable cause to search a vehicle beyond a scan of what is in the open and plainly visible. If the police ask you to perform a search of your car, you have the right to politely decline and assert your Fourth Amendment rights, which protects against unlawful searches. This assertion cannot be held against you.
If the police make a decision to place you under arrest, the police may confiscate the open containers as evidence to be used against you. A search may also include a search of your person and the immediately reachable areas of your vehicle. If the police seize any evidence as an incident to your arrest, it may be used against you in court. Commonwealth v. Craan, 469 Mass. 24, 29 (2014).
If you are arrested, you may request to have someone else take custody of your car and law enforcement must offer a legally capable passenger the option of taking custody. If there is nobody to take the car, it may be towed and impounded and the police may legally search your car. Commonwealth v. Oliviera, 474 Mass. 10, 13-14 (2016). The purpose of this type of search is not intended to gather evidence to be used against you; instead it is intended to protect your property and ensure the safety of law enforcement and those who will be towing or storing your car. The police are required to follow certain protocols when performing an inventory of any items in your vehicle. If the police locate any items that evidence criminal activity or behavior, the evidence may be used to prosecute you. Commonwealth v. Wilson, 389 Mass. 115, 119 (1983). However, if the police failed to follow their protocol, there may be a valid basis to suppress the evidence. Commonwealth v. Bishop, 402 Mass. 449 (1988).Not all evidence is admissible, not all searches are lawful and not all stops are properly conducted. The law provides for a citizen to protect their rights. If you believe that you or a loved one has been subjected to unlawful search during an OUI traffic stop, call the Law Offices of Joseph D. Bernard for a case evaluation, free of charge or obligation. Trust a Massachusetts OUI attorney to fight for your rights.