The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures. Generally a warrant, issued by a magistrate and supported by probable cause, is required for a search and seizure. However, there are numerous exceptions to this rule, especially in the context of automobile searches.
Traffic Stops. Simple traffic violations have become the downfall of many drug dealers, getaway drivers and fugitives. By failing to observe basic traffic laws, including speeding, rolling through stop signs, failing to use turn signals and a seemingly innumerable other moving violations, law enforcement is given a reason on a silver platter to investigate beyond the scope of the initial stop. This includes running a LEIN (Law Enforcement Information Network) check on the driver, and possibly the passengers, to see about outstanding warrants, and depending on the factual circumstances, to inquire about the contents of your vehicle.
An officer that pulls you over has the opportunity to interact with you. While the stop may be a pretext to question you, if in fact the officer observed a traffic infraction, the officer may make the stop irregardless of the alternative reason for making the stop. However, the officer cannot selectively enforce a traffic law (e.g., based on racial profiling), which may be deemed to deny one equal protection under the Fourteenth Amendment, as a pretext for the stop. This is very hard to prove and is very case specific. However, if the officer did not actually observe a traffic violation, as an in-car video may show, then all evidence discovered subsequent to the search may be suppressed and your case dismissed.
Investigative Stops. An officer who suspects that a driver is engaged in criminal activity may lack probable cause for an arrest, but it may be enough to engage in what is known as an “investigative stop”. For example, the police may have received a credible tip that a drug deal is about to occur, or someone is transporting contraband in a vehicle. Even if the officer lacks probable cause to arrest or search the motorist, the officer can stop and temporarily detain the motorist to investigate further if “there is articulable suspicion that a person has committed or is about to commit a crime.” People v Shabaz, 424 Mich 42, 57, 378 NW2d 451 (1985) (citing Terry v Ohio, 392 US 1 (1968)). This means that an officer can stop and temporarily detain a driver even where no traffic violation has occurred and where the officer does not have probable cause to arrest the driver, provided that the officer has a reasonably articulable suspicion of criminal activity.
For the officer to make a legal investigative stop, “[t]he totality of the circumstances as understood and interpreted by law enforcement officers, not legal scholars, must yield a particular suspicion that the individual being investigated has been, is, or is about to be engaged in criminal activity. That suspicion must be reasonable and articulable, and the authority and limitations associated with investigative stops apply to vehicles as well as people.” People v Nelson, 443 Mich 626, 632, 505 NW2d 266 (1993). “There is no bright line rule to test whether the suspicion giving rise to an investigatory stop was reasonable, articulable, and particular. Common sense and everyday life experiences predominate over uncompromising standards.”Id. at 635–636. “Reasonable suspicion entails something more than an inchoate or unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.” People v Champion, 452 Mich 92, 98, 549 NW2d 849 (1996).
Police officers commonly rely on their “training and experience” to conclude that a defendant’s actions or circumstances surrounding a situation created a reasonable suspicion that a crime was being committed. It must, however, be more than a mere “hunch” to rise to the level of reasonable suspicion. In order to challenge the “training and experience” of an officer, a defendant needs a reputable Michigan criminal defense attorney to properly question the officer on the justification constituting reasonable suspicion for the stop.
If the initial traffic stop was legal, either because of valid stop based on a traffic infraction or because of reasonable suspicion for the stop, then the next question to address is whether the officer exceeded the scope of the stop.
For a stop based on a simple traffic violation, “once the driver has demonstrated that he is entitled to operate his vehicle, and the police officer has issued the requisite warning or ticket, the driver ‘must be allowed to proceed on his way.’ ” United States v Branch, 537 F3d 328, 336 (4th Cir 2008). Therefore, the officer cannot use a traffic stop to probe the motorist about unrelated matters if doing so expands the scope of the initial stop beyond the time that would otherwise be necessary to complete the stop.
However, the officer is not limited to asking a motorist for license and registration and may inquire about other topics. The officer is also not required to allow the driver to remain in the motor vehicle.
“A stop may be extended for a length of time sufficient to enable the apprehending officer to ask the driver to step out of the vehicle or wait in the patrol car, to ask about the motorist’s destination and purpose, to check the validity of the driver’s license and registration, and to check the driver’s criminal history for outstanding warrants. Asking an off-topic question, such as whether a driver is carrying illegal drugs, during an otherwise lawful traffic stop does not violate the Fourth Amendment.” United States v Long, 532 F3d 791, 795 (8th Cir 2008).
If the officer exceeds the permissible scope of the initial stop, the encounter becomes a de facto arrest, and any evidence obtained after that point is considered illegally obtained unless otherwise supported by probable cause. United States v Sharpe, 470 US 675, 684 (1985).
Expanding the Scope. If, however, during the course of an otherwise valid traffic stop, the officer learns additional information that gives him or her a reasonable suspicion to believe a crime has been or is being committed, the officer can expand the scope of the stop to explore the new circumstances. People v Williams, 472 Mich 308, 315, 696 NW2d 636, 641(2005) (“when a traffic stop reveals a new set of circumstances, an officer is justified in extending the detention long enough to resolve the suspicion raised”).
The Motor Vehicle Exception. Generally, if the police have probable cause to search a vehicle, there is no need for them to obtain a warrant before searching it. Carroll v United States, 267 US 132, 153 (1925) (where police have probable cause, “contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant”). This so-called motor vehicle exception to the Fourth Amendment’s warrant requirement is based on the exigency created by an automobile’s “ready mobility” and “the individual’s reduced expectation of privacy in an automobile.” People v Carter, 250 Mich App 510, 517, 655 NW2d 236 (2002). Probable cause to search a vehicle is no different than the probable cause necessary to obtain a warrant to search a residence:
A finding of probable cause requires a substantial basis for concluding that a search would uncover evidence of wrongdoing. There must be “a fair probability that contraband or evidence of a crime will be found in a particular place.” The determination whether probable cause exists to support a search, including a search of an automobile without a warrant, should be made in a commonsense manner in light of the totality of the circumstances.
People v Garvin, 235 Mich App 90, 102, 597 NW2d 194 (1999).
Under the automobile exception, an officer may conduct a warrantless search of all parts of a vehicle, including the trunk, containers, and even the passenger’s belongings, if there is probable cause to believe the vehicle contains contraband. California v Acevedo, 500 US 565 (1991); United States v Ross, 456 US 798, 820–821 (1982) (“When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions … between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.”); Wyoming v Houghton, 526 US 295, 307 (1999) (“police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search”).
Practically this occurs in two situations, the police see or smell something. For example, according the the plain view doctrine, if during a valid traffic stop an officer sees drugs in plain view in the vehicle, the officer can enter the car and seize the drugs without a warrant, and then search the rest of the vehicle as they now have probable cause.
Michigan law recognizes that “the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle, pursuant to the motor vehicle exception to the warrant requirement.” People v Kazmierczak, 461 Mich 411, 426, 605 NW2d 667 (2000). This includes the smell of “burned, burning, and unburned marijuana.”Id. at 426 n13. Thus, a police officer that smells what he or she believes to be the odor of marijuana will be justified in searching the entire vehicle. This rule is obviously easy for a police officer to abuse, so it is very important to have an experienced Michigan criminal defense lawyer to challenge an officer’s observations. The law is unclear as to whether or not an officer smelling burnt marijuana is sufficient justification to search a trunk, especially if no marijuana was discovered in the passenger compartment.
Search Incident to Arrest. In New York v Belton, 453 US 454 (1981), the United States Supreme Court held that an officer can search the passenger compartment of a vehicle incident to the arrest of the driver or passenger, even in the absence of probable cause or a warrant. The court found that these searches were permissible to ensure that the arrestee could not gain access to a weapon and harm the officer or obtain evidence and destroy it. After Belton, this rule evolved well beyond the bounds of its initial justification, and courts routinely upheld vehicle searches incident to arrest even where the driver was handcuffed and locked in the back seat of the patrol car. Obviously, such incapacitated individuals cannot access the passenger compartment of their vehicles, and the safety and evidentiary concerns of the Belton court are not present.
In Arizona v Gant, 556 US 332, 129 S Ct 1710 (2009), the U.S. Supreme Court finally put an end to this overbroad application of the Belton rule, holding that no such search is permissible if the arrestee is under the control of the police and there is no reasonable possibility that he or she could actually access the vehicle. In narrowing the scope of the rule, theGant court held:
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
129 S Ct at 1723–1724. In a vehicle search case that arose two years before Gant was decided, the U.S. Supreme Court ruled that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. Davis v United States, ___ US ___, 131 S Ct 2419 (2011). In the earlier case of People v Short, 289 Mich App 538, 797 NW2d 665 (2010), the court held that because it was objectively reasonable for an officer to rely on Belton before it was changed by Gant, the good-faith exception to the exclusionary rule applied, and the trial court correctly denied defendant’s motion to suppress.
Consent. An owner or person in control of a vehicle (i.e., presumably the driver) can give consent for a police search. In this case, no warrant is required and no probable cause is necessary. The consent must from someone authorized to give consent, be freely given and the search must be limited to the scope of the consent.
For example, permission from a driver of a motor vehicle to search it would not properly include the purse of a passenger without the passenger’s consent. Also, if you have a taser pointed at you and prior to any Miranda warnings, consent may not be deemed freely given. Finally, consent to search the passenger compartment of a vehicle, does not necessarily include the trunk.
Factors to be considered in determining whether the consent was given freely include whether the defendant was handcuffed or placed under custodial arrest and whether the police coerced the consent through a “show of force,” such as by drawing their weapons. Malone, 180 Mich App at 355. While the police do not have to inform your client that he or she has the right to refuse consent, “knowledge of the right to refuse is but one factor to consider in determining whether consent was voluntary under the totality of the circumstances.” People v Borchard-Ruhland, 460 Mich 278, 294, 597 NW2d 1 (1999) (citing Schneckloth v Bustamonte, 412 US 218, 248–249 (1973)).
Also consider that “the party granting consent to a search may limit its scope or may revoke consent after granting it. Thus, because consent flows from its grantor, a suspect may of course delimit as he chooses the scope of the search to which he consents.” People v Dagwan, 269 Mich App 338, 343, 711 NW2d 386 (2005) (internal citations omitted). The test for determining the scope of a consent to search “is that of ‘objective reasonableness’—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v Jimeno, 500 US 248 (1991).
Inventory Search/Inevitable Discovery. Even after establishing the search of a vehicle was unconstitutional because it exceeded the scope of a permissible search incident to arrest under Arizona v Gant, 556 US 332 (2009), the prosecutor will fall back on inventory search and the doctrine of “inevitable discovery”. Meaning the police would have found the evidence when they impounded the vehicle and conducted an “inventory search”.
The doctrine of inevitable discovery provides that evidence obtained through an unconstitutional search may “still be admitted at trial if the prosecution establishe[s] by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” People v Brzezinski, 243 Mich App 431, 435, 622 NW2d 528 (2000). The police can legally conduct an inventory search of a vehicle, without a warrant, once it has been impounded. The purposes of an inventory search are “(1) protection of the owner’s property while in police custody, (2) protection of police against claims of lost or stolen property, and (3) protection of the police from potential physical danger.” People v Toohey, 438 Mich 265, 284, 475 NW2d 16 (1991). No warrant is necessary because “such a search is considered to be an administrative function rather than a part of a criminal investigation.” People v Houstina, 216 Mich App 70, 77, 549 NW2d 11 (1996).
In this case, the prosecutor bears the burden of proving that the police would have actually conducted a valid inventory search, that would have inevitably happened and that would have discovered the contraband. It is not enough to say that just because the police had the right to conduct an inventory search, that it would have actually happened. “[T]he validity of the inventory search depends on whether there were standardized criteria, policies, or routines regulating how inventory searches were to be conducted. … The goal is to prevent inventory searches from being used as ‘a ruse for general rummaging in order to discover incriminating evidence’ and, therefore, the applicable policy ‘should be designed to produce an inventory.’ ” People v Poole, 199 Mich App 261, 265, 501 NW2d 265 (1993) (quoting Florida v Wells, 495 US 1, 4 (1990)).
Exigent Circumstances/Safety. “[W]arrants are generally required to search a person’s home or his person unless the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” United States v Santana, 427 US 38, 42, 43 (1976). The “exigent circumstances” exception to the search warrant requirement provides that the police may search without a warrant in cases of an “ ‘actual emergency’ if there are ‘specific and objective facts indicating that immediate action is necessary to (1) prevent the imminent destruction of evidence, (2) protect the police officers or others, or (3) prevent the escape of a suspect.’ ” People v Chowdhury, 285 Mich App 509, 526, 775 NW2d 845 (2009).
In the context of an automobile search, Terry v Ohio, 392 US 1; 88 S Ct 1868 (1968), allows for protective search for weapons in an automobile if the officer points to “specific and articulable facts” which, along with rational inferences, alert the police that a suspect is dangerous and may gain immediate control of weapons, thereby reasonably warranting the intrusion. Michigan v Long, 463 US 1032, 1049 (1983). Hence, if the police reasonably believe the defendant to be dangerous and the automobile to contain weapons, then they may search for weapons. If the police are reasonably searching for weapons and they find other contraband, then the items found would be the subject of a valid search.
The best way to defend your case is with an experienced Michigan criminal defense lawyer.
Marc Beginin is currently pursuing other non-legal business pursuits. Visit https://lrs.michbar.org/ for the State Bar of Michigan lawyer referral service.