Is the driver of a vehicle the sole person who can consent to or refuse a vehicle search by a police officer? Suppose my wife is driving my car, registered in my name only, and I’m in the passenger seat. Do I have any say in this? Who gets the blame for anything the cop finds?
Factually, it depends on whether you and your wife are co-users of the car (actual ownership is irrelevant).
Realistically a car is almost always searchable without consent. A car is per se searchable:
With probable cause (but no warrant) whenever it is not parked in the owner’s driveway
With no suspicion whenever the driver is arrested (“Search Incident to Arrest”).
With no suspicion whenever the car is impounded (“Inventory Search”).
Plus
the passenger compartment can be “frisked” for weapons whenever the driver is stopped, on reasonable suspicion there is a weapon in the car (“Car Frisk”).
If a car is searched in violation of these rules (ie without the required quantum of suspicion) the evidence is only suppressed as to the person whose rights wewre violated. Stay with me here.
Your wife is driving the car. She is stopped illegally and the car is searched illegally. The police find your stash of crack in the backseat, with your fingerprints all over it.
The crack is only suppressed in your wife’s trial as accomplice. She was the one stopped and searched. As to you for possession of crack with intent to distribute, it is admissable because your rights were not invaded.
Bear with me here. I was imagining a situation where we are, say, pulled over for some minor traffic infraction, perhaps driving 7 miles per hour over the speed limit. We are clean-cut and driving a nice car, with two kids in the back seat. There is no reason for the officer to suspect we have any sort of weapons. He asks my wife, who is driving: “Do you mind if I search your vehicle?” I know that my wife is within her rights to refuse consent to the search. My question is, is she the ONLY one who has that authority in that situation?
What if the owner specifically forbids searchs of his vehicles as a general policy? Suppose I were the owner of a trucking firm and a hard-core anti-government type. Could I instruct my drivers that they were never to consent to any vehicular searchs? And what would be the legal implications if a driver overrode my direction and consented to a search anyway? As the property owner, I would feel I have the right to make the decisions regarding my property even if I was not present. Letting the driver make the decision about whether my truck could be searched seems like the police showing up at my house when I’m not home and asking the meter man if they can search it - the driver and meter man are just contract employees who are physically present not the owners who have the authority to make decisions about the property.
The meter man actually can consent to the search of your home, if the officers reasonably believe that he’s a person with authority to consent to the search. It’s called the apparent authority doctrine, from Illinois v. Rodriguez, 497 U.S. 177 (1990). Apparent authority applies to vehicles as well, so if your driver consents and the officer has no reason to know about your objection, the consensual search will be valid.
The law is not at all clearcut on this question. A Supreme Court case - Georgia v Randolph - suggests that if coequal residents of a home do not agree as to consent, there is no consent. The reasoning of that opinion is considered pretty shaky though, and has never been applied to a car search.
What actually happens when your wife consents, and you don’t, is that the officer becomes confused. Perhaps if he is extremely diligent he calls his HQ and/or the DA (if he can raise one) who, it turns out, cannot provide him with specific guidance. In all likelihood he does the search anyway and lets the courts sort it out.
Of course if, during the encounter, either of you becomes aggressive, or commits any misdemeanor offense in his presence, you have probably created reasonable suspicsion sufficient to a car frisk and/or a SIA.
I don’t think the officer gets confused. I think the officer searches the vehicle. As we’ve discussed before, if the officer finds nothing, no harm no foul (good luck vindicating your civil rights); if the officer finds something, there are a number of doctrines that could permit the “something” to be admitted in evidence.
Hello Again, I’m a good ten years out of law school, so I’ll rely on you for this: if two people have apparently co-equal authority to authorize a search, and one does authorize the search (while the other does not), is the search valid? Clearly yes, if the non-consenting person doesn’t speak up. What happens if the consenter says yes, and the non-consenter says no – is the search valid?
Under what circumstances would a meter man have apparent authority in the scenario Little Nemo suggested? if I read your cite correctly, the person with apparent authority was a resident of the house.
[Meter man knocks, identifies himself, and is permitted entry by homeowner, who has taken some pills and is pretty woozy. Homeowner disappears into another part of the home and passes out in a puddle of vomit. Meter man is oblivious, reads the meter, puts his coat on, which conceals his uniform, and prepares to leave.]
Officer: [knocks on door]
MM: [Opens door] Good afternoon officer!
Officer: How are you doing today sir, we’ve had complaints that you’ve got some farm animals living in here, we can resolve this quickly.
MM: [Not wishing to identify himself because he hasn’t paid child support in 10 years tries to get out of there as smoothly as possible.] Sure officer. I’m on my way back to work, but my brother is still here. Is it ok if I go?
Officer: Sure. [Searches home and uncovers guns, money, drugs, child pornography, and illegally imported cigarettes.]
It gets a bit more complicated if the meter is outside, as many are, but suppose you knew the meter man and had given him permission to use your bathroom, even when you weren’t home; or that he did so without permission. In either case, he answers the door.
The concurrence in this case notes that other courts have required a more searching inquiry from police:
So in some jurisdictions, the police would probably have to ask some questions before they would be justified in believing the guy had authority. In those jurisdictions we’d need some additional facts, to be sure.
Why does the meter man have to come inside? Meters are on the outside so that no one has to be home for the meter to be read. Most meters today are wireless and can be read from the street.
Does lying to the cops make one an apparent authority? Would that search be upheld?
How do either of these scenarios jibe with Little Nemos’?
I only checked out the case because I heard about it on NPR and was certain the result had been misreported. (More than once I’ve heard a denial of certiorari reported as “Today the Supreme Court let stand . . .[fill in your favorite plainly wrong result here]” and thought. . . holy crap, who writes this stuff?) I was pleasantly surprised this time.
