I was watching some cop show a while ago (it was several months ago; the cops were in Alaska, I think) where some people were pulled over on a highway for some infraction.
This one was unusual in my memory, because it is one of the few instances shown where the people seemed to be aware of and willing to exercise their right to refuse to consent to a police search of their vehicle.
The officer smelled drugs in the vehicle and wanted to search it; the owners would not consent, so he has the car impounded while he waits for a warrant. He gets the warrant, searches the vehicle, and charges the occupants with some drug-related offense.
What I am curious about is the authority under which he impounded the vehicle, since at that point he did not yet have a search warrant. Would not that impounding be considered a “seizure” under the 4th Amendment and therefore, require that he obtain the warrant before impounding the car?
I don’t believe they were officially arrested until after the car was searched and the drugs were found. They were originally detained for a traffic violation of some sort.
If I remember the sequence of events correctly it was something like this:
[ol]
[li]Driver stopped for traffic violation.[/li][li]Officer smells drugs when driver opens window[/li][li]Officer orders everyone out of the vehicle[/li][li]Officer asks to search vehicle[/li][li]Occupants do not consent[/li][li]Officer impounds vehicle[/li][li]Officer goes to court and gets a warrant[/li][li]Officer searches vehicle and finds drugs[/li][li]Officer arrests occupants[/li][/ol]
It didn’t appear to me that he had arrested them (though they were certainly not free to go) until after the vehicle had been searched, and he found contraband.
I may be confusing US and Canada law, but IIRC there’s a special exception to search for vehicles because unlike a house they can be long gone, out of the jurisdiction when the authorization comes through.
Maybe he wanted the warrant just to make it an airtight case?
COPS edit out some relevant facts at times. Unless they were arrested “on scene” and the car was impounded, an impound without a warrant is questionable.
While police can impound a car that is known to be subject to forfieture, etc., without a warrant, such as you describe seems UNreasonable.
If he had probable cause to search it at that time, he did not need a warrant under the “automobile exception” to the 4th AM.
The “plain smell” doctrine permits, generally, a search to be made of the car, and mostly trunks (specific), but to impound without arrest/warrant, except if subject to forfieture, etc. I would have to check some laws, but what I am familiar with, they can’t impound.
I found this online as a summary;
For both suppression of evidence and civil liability reasons, it may be wise for departments to review their impound policies for constitutional compliance. Impounds can usually be made in the following circumstances:
• Probable cause that the vehicle is an instrumentality of a crime
• Vehicle is unlawfully parked, with no one to move it
• Vehicle is a traffic hazard, with no one to move it
• Driver was arrested or evacuated and the vehicle must be moved from a bad area for safekeeping
Simply smelling POT, and I assume that was the smell, would NOT make the car an instrumentality of a crime as in 1 either. That would be more like transporting drugs, getaway car abandoned, etc.
My FIL is a retired cop. We talked about this once. One way he said they could search was to impound the vehicle then perform and inventory check of the vehicle contents with the vehicle owner/driver present. This was done under the guise of preventing the vehicle owner claiming someone stole something of value from the vehicle while in possession of the police and/or towing company. Of course if something illegal was found during the search, everything changed at that very moment.
The trick once used on me was that the police claimed to have radioed in my license plate, which they were told (again, by unverifiable radio transmission) was a vehicle that had been used in some burglaries. They then—having probable cause—searched my vehicle without my permission. (Found nothing, of course).
I’m sure there are other ruses than are used to conduct a search without permission. Needless to say, none of these can be challenged in court, as the police can simply say the plate number must have been misunderstood, on one end or the other.
Perhaps I didn’t make my question clear. A cop asks to search my car and I say no. They then claim probable cause and search anyways. Isn’t there an assumption that if they had probable cause they wouldn’t ask my consent?
I think that’s been answered: no. The police prefer consent under all circumstances, as it’s faster than a warrant, and unlikely to be thrown out in court.