Vehicle Search
Is An Officer Allowed To Use A Flashlight To Look In My Vehicle
Use Of A Flashlight To See Inside A Vehicle Is Not An Illegal Search
If the officer has a legal right to be next to the vehicle then using a flashlight to look inside the vehicle is not a search which would require consent, probable cause or a search warrant. For instance during a routine traffic stop, or at the scene of an accident or while the vehicle is parked in a public parking lot the officer has a right to look into the vehicle from the outside without it being a search that requires consent, probable cause or a search warrant. In order to assist the officer in seeing what is inside the vehicle the officer is allowed to use a flashlight without it then being considered a search of the vehicle by the officer which would require consent, probable cause or a search warrant. The office can not put the flashlight inside the vehicle like through an open window that would be a search requiring consent, probable cause or a search warrant.
Illegal Search If Traffic Stop Is Improperly Extended For A Search
The outside search of your vehicle, however, to be legal must occur within the time necessary for the officer to complete the traffic stop. The officer can not write a ticket or give the driver a warning instead of a ticket and then detain the driver so the officer can walk around the vehicle and look inside, with or without a flashlight. If the officer does that it is a seizure which would require probable cause. If the officer sees something illegal in plain view in the vehicle during that illegal seizure then because the seizure was illegal then the search that occurred during the illegal seizure is illegal and the illegal item or items can be suppressed with a motion to suppress.
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Does An Officer Need Probable Cause To Request Consent To Search Your Vehicle?
No Probable Cause Necessary For Request To Search Vehicle
An officer can ask anyone for consent to search their vehicle. An officer only needs probable cause to search your vehicle if you do not consent to the search of your vehicle. The officer does not have to tell you that you can refuse. However, an officer cannot treat a lack of response as consent to search. An officer also cannot obtain lawful consent to search your vehicle by coercing consent by doing things like saying if you do not consent to the search of your vehicle you will be arrested.
No Consent To Search Your Vehicle Creates Suspicion
Refusing to consent to the search of your vehicle is normally going to cause the officer to become more suspicious and the officer will start saying things like what do you have to hide and if you do not have anything illegal in the vehicle then why do you care if I search it. Officers also say things like if you are honest with me it will be better for you. All of these statements are just attempts at changing your mind to allow an officer to search your vehicle because they do not have probable cause to search your vehicle. If the officer did have probable cause to search your vehicle and you refused the officer would just search it anyway. Refusing the search of your vehicle does not create probable cause which would allow the officer to search the vehicle.
Why Ask For Consent If Probable Cause Already Exists To Search The Vehicle?
So why would an officer ask for consent to search a vehicle if the officer already believes that probable cause exists to search the vehicle? An officer will ask for consent to search the vehicle because if the officer is wrong about the probable cause belief then the vehicle search is still legal because of your consent to search the vehicle. Therefore, any illegal items will not be excluded from evidence for an illegal search with a motion to suppress. Consent to search the vehicle means the officer does not have to risk losing evidence as the result of an illegal search if the officer is wrong about having probable cause to search the vehicle.
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Is It Normal For An Officer To Asked For Consent To Search Your Vehicle During A Traffic Stop?
Not Normal
It is not normal for an officer to ask the driver for consent to search the vehicle during a routine traffic stop. If an officer is asking for consent to search the vehicle it is usually because something has occurred that indicated the presence of illegal items in the car based on the training and experience of the officer. That can be something as simple as the odor of cannabis coming from the driver and or the vehicle. It may be drug paraphernalia in plain sight in the center console. It could be suspicious movements by someone in the vehicle after the vehicle was stopped but prior to the officer approaching the driver. It may be something like the officer asking the driver where they are going to or coming from and the reason and the answer being evasive or the location of the vehicle not being between those two points. It also may be that the answers by the driver to the officers’ questions are inconsistent or do not make sense to the officer. Also, another reason can be if the driver refuses to answer questions from the officer.
Generally Suspicious
It does not take much to cause an officer to wonder if there is something illegal in a vehicle. Officers are generally suspicious. If the officer even has the slightest concern that something seems off the officer is going to ask to search the vehicle to see how the driver reacts and if the driver agrees to the search. If the answer from the driver is no to the vehicle search the officer is going to assume the driver has something illegal in the vehicle and then try to figure out another way to legally search the vehicle to find out if there is something illegal in the vehicle. Officers generally do not believe that innocent people should refuse consent to a search of their vehicle even though the constitution allows them to do so. This is the point when officers say something like if you do not have anything to hide why do you care if I search the vehicle. The answer is because people in this country are not required to submit to police searches without probable cause or a warrant, innocent or not.
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Can An Officer Legally Search Your Vehicle Because Your Are Nervous?
Nervous Is Not Enough
A nervous driver is not enough to establish the necessary probable cause for an officer to search the vehicle without consent. However, if a person is acting overly nervous during a traffic stop an officer will assume that there is something in the car that is illegal. Officers interact with people on traffic stops routinely and they understand that people are normally nervous during a traffic stop because they are worried about getting a ticket. However, when a person is overly nervous an officer is normally going to ask for consent to search the vehicle. If the driver refuses to consent to a vehicle search then the officer is going to walk around the vehicle and look inside to see if anything illegal is in plain view that would give the officer probable cause to search the vehicle. If a drug dog is available an officer may request a dog to walk around the vehicle to determine if any illegal drugs are present.
Continued Detention Is Illegal Without Probable Cause
The officer must be actively engaged in completing the traffic stop throughout the traffic stop. An officer cannot question the driver about matters unrelated to the traffic stop or do other things unrelated to the traffic stop to obtain extra time for a drug dog to arrive to walk around the vehicle. The officer only has as long as is necessary to complete the traffic stop by either writing the driver a ticket or giving the driver a warning to establish probable cause to search the vehicle without consent or to establish probable cause to justify the continued detention of the driver. Once the purpose for the traffic stop has ended then the officer must have probable cause for the continued detention of the driver. If the officer does not have probable cause for the continued detention of the driver after the completion of the traffic stop then any illegal items obtained as a result of that illegal detention can be suppressed with a motion to suppress.
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What Causes An Officer To Ask To Search Your Vehicle During A Traffic Stop?
The odor of cannabis coming from your vehicle is a major reason for an officer to request to search your vehicle. Cannabis used to be illegal to possess in Florida for everyone so it was easy for an officer to conclude that the odor of cannabis was an indication of illegal activity in the vehicle. However, now some people have medical cannabis cards issued by Florida that legally allows them to possess cannabis. Therefore, the odor of cannabis alone is not always an indication of illegal activity in the vehicle. Now, officers are asking drivers if they have a medical cannabis card. If the driver says no then it helps the officer establish that the driver may have illegal cannabis in the vehicle and that could establish the probable cause the officer needs to search your vehicle even if you refuse to consent to a search of your vehicle by the officer. If you consent to a search of your vehicle by the officer then probable cause is not necessary to search your vehicle.
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Chris S. Boatright, P.A.
