WARRANTLESS SEARCHES – GANT IS MEANINGLESS NOW

Can police search your car without a warrant or probable cause?

Well … if you were hoping for a simple, yes-or-no answer, you’ve asked the wrong question.

Courts’ interpretations of the Fourth Amendment’s prohibition against unreasonable searches are complicated, especially when they involve an automobile search.

THE MOTOR VEHICLE EXCEPTION

In Carroll v. The United States, the Supreme Court established the motor vehicle exception, which allows police to treat a vehicle differently than other properties when conducting searches. Because cars can obviously be moved – along with whatever evidence police believe they contain – officers do not need a warrant to search your car … most of the time.

They need probable cause or, in some cases, reasonable suspicion, but the officer is allowed to make the initial determination that can later be reviewed by a court, instead of requiring the officer to get pre-approval by seeking a warrant.

Arizona v. Gant

In 2009, the Supreme Court held, in Arizona v. Gant, that if police charge the owner of a vehicle with a non-traffic crime, they cannot search a legally parked vehicle without a warrant unless it is likely that evidence of the crime they are being charged with will be found in the car … “unless police … show that another exception to the warrant requirement applies.”

On the surface, this sounds like a reasonable check on law enforcement’s ability to search cars anytime they like, but – in practice, it gives cops a lot of leeway because police and prosecutors can usually come up with such an exception.

State v. Miller

One such exception is the “inventory search.” The South Carolina Supreme Court recently ruled in State v. Miller that police did not violate a suspect’s rights when they searched his car, because they were going to have his car towed after his arrest anyway – when a car is towed, the towing company will search the car to list its contents, therefore police can go ahead and search it before turning it over.

The police department’s policy, at least in this case, required that police tow the vehicle in question, even though it was parked legally on private property…

So, this brings us to new territory – the police can search your car even when it is legally parked on private property … but not always.

Collins v. Virginia

The US Supreme Court last month ruled that police cannot just come onto your private property and search your car without probable cause or a warrant in Collins v. Virginia.

The case involved a police officer who suspected a man had stolen a motorcycle, so he went to the man’s home, walked up his driveway, and lifted a tarp to discover the motorcycle and photograph it.

The court said that the area searched by the officer was within the home’s curtilage (the area immediately surrounding a house, including the porch, garage, and driveway), and therefore deserves the highest degree of Fourth Amendment protection – the automobile exception does not apply, the inventory exception did not apply, and police needed to get a warrant before conducting any search.

What’s the Difference?

In Collins, where a warrant was required, there was:

• No traffic stop;
• The motorcycle was located on the driveway within the curtilage of the home; and
• There was no reason to tow the vehicle, therefore no inventory search.

Gant’s protections have slowly been narrowed and defined over the last decade – even if you are being charged with driving under suspension (DUS) and no evidence of the crime could be found in your car, police do not need a warrant to search if:

• There is a traffic stop and your car would be towed; or
• You are stopped on private property, the car doesn’t have to be towed, but police department policy says they can tow it.

Which means, as a practical matter, Gant now only requires officers to get a warrant if your car is already sitting in your driveway and there was no traffic stop. Which I’m pretty sure was already clear before Gant…

GOT AXELROD?

If your vehicle has been illegally searched with no warrant, call a SC Fourth Amendment attorney immediately – if the search was illegal, the remedy will be suppression of any evidence that was found.

Call Axelrod and Associates now at 843-353-3449 or fill out our contact form to talk to an experienced criminal defense and Fourth Amendment lawyer today.