Part 5: Do I Have To Give Police Consent To Search My Vehicle?
The majority of roadside car searches are done without a warrant and without probable cause.
How’s that possible you may ask?
It’s possible because most people give police consent and permission to search their car. This post features many of the SCOUTS and Illinois case law that create the rules for police consent search of a vehicle.
A consent search is completely voluntary. That means when an officers asks for your permission to search your car you always retain the right to refuse. You can choose to say “no” and deny police your consent to search. You cannot be punished or prosecuted if you say “no.”
When Police Have Nothing Else They May Have Consent – It Never Hurts To Ask
Florida v. Jimeno – General Consent To Search Includes Bags And Containers
Generally, with a consent search, police may search the entire vehicle, including any containers and the trunk. Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801 (1991) began when an officer overheard what he thought to be a drug deal discussed over a public phone.
The officer followed the man when he got into a car and drove away. Eventually, the man made a right turn at a red light without stopping. At that point, he stopped the car. The officer told the driver he had reason to believe he was carrying narcotics in his car, and asked for permission to search the car.
The driver stated he had nothing to hide and agreed to the search.
The two female passengers got out of the car. The officer saw a folded brown paper bag on the floorboard passenger side. He picked it up and opened it where and found a kilogram of cocaine.
On appeal the defense challenged the scope of the search.
The defense argued consent to search only meant looking around in the car and did not extend to opening bags and containers in the car.
The court held it was objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs.
The terms of the search’s authorization were simple.
Respondent granted permission to search his car, and did not place any explicit limitation on the scope of the search. The authorization, therefore, extended beyond the surfaces of the car’s interior to the paper bag lying on the car’s floor.
Defendant could have placed limits on the search, but he did not. This search was constitutional.
How Police Get Consent To Search From Practically Any Driver
People v. West
There are plenty of examples in the record of how to obtain consent from a driver. People v. West, 2017 IL App (3d) 130802 exemplifies how a trained interdiction officer practices his trade.
This officer stopped a car for speeding and the driver had an Arizona drivers license. The officer asked numerous questions unrelated to the traffic stop. Defendant said he was driving from Arizona to Flint, Michigan, to visit friends. He said he planned to stay until the end of the week and indicated that he did not know his friends’ address in Michigan.
The officer noticed a suitcase in the backseat, a mechanic’s shirt hanging inside the car, and a camera in the rear window.
The officer asked defendant to sit in his squad car with him while he checked his documents and wrote him a warning ticket. The officer stated he found it odd that defendant said his business was not going well but he was taking a costly trip to visit friends.
Approximately 14 minutes after the stop, the warning was written, the driver’s documents were returned, and the driver was told he was “free to go.”
Defendant exited the squad car. The officer told him to have a “nice trip,” they shook hands, and they remarked that it was nice meeting each other.
Defendant exited the squad car with his paperwork and began walking back to his car. Before defendant got back into his car, the officer asked defendant if he could talk with him further.
Defendant agreed to do so. Before defendant gets into his car the officer asks for permission to search. Defendant said “yes.”
The reviewing court said this stop was not unreasonably delayed or prolonged. At no time did the officer cease working on the traffic stop while engaging defendant in conversation. Generally, a valid traffic stop ends when the paperwork of the driver and any passengers has been returned to them and the purpose of the stop has been resolved.
After the initial stop had ended the defendant agreed to talk some more and granted valid consent to the car search. The search was reasonable.
The officer found 12,204 grams of cannabis in 16 bundles wrapped in duct tape hidden in defendant’s doors.
An officer has to mean it, when they say, “you’re free to go”, and be prepared to accept what the driver chooses.
When Police Ask For Your Consent To Search What Do They Have To Tell You?
Ohio v. Robinette
In Ohio v. Robinette, 117 S.Ct. 417 (1996) defendant argued his consent could not be valid because the officer did not tell him he had a right to refuse.
Defendant was stopped for speeding in a construction zone.
Right before the officer was going to let him go he asked him, “One question before you get gone: Are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?”
Defendant answered “no.”
The deputy then asked if he could search the car. Defendant consented.
In the car, the deputy discovered a small amount of marijuana and, in a film container, a pill which was later determined to be methylenedioxymethamphetamine (MDMA).
The court held that while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as a prerequisite for consent.
Police have no obligation to inform a driver that they have the right to refuse consent. Nor do they have to inform a driver that he or she is free to leave.
The fourth amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances.
The truth about voluntary consent to search is that it often comes to you quick and dirty. There’s no drawn out negotiation or complicated contractual posturing.
Police Can’t Lie To You When They Ask For Your Consent To Search
People v. Wall
Police told a big fat whopper when they asked for consent to search in People v. Wall, 2016 IL App (5th) 140596 (October). It is not strictly speaking a car search case, but the rule is equally applicable to roadside requests to search a car.
Defendant is called by police and told that his house may have been broken into. He needed to come home right away. Except this was a total made up fabrication. It was a mere roose to get defendant to leave work and come home.
When defendant arrives he finds a drug team at his house and was told he would not be arrested if he signed the consent to search his home. Defendant instead asked if they had a warrant.
The court noted that the officer talking to defendant was a huge dude. The officer was 6 feet 6 inches tall and 390 pounds. This officers veiled threat in this case likely had a real impact.
Defendant signed the form.
Cannabis and cannabis plants were located in the home.
Defendant argued that his consent was involuntary since he was lured home on false pretenses and police led him to believe his only choice was to consent or be hauled off to jail.
The court agreed with defendant.
To be effective consent must be voluntary, meaning that it must be given absent any coercion, express or implied, and must not be the result of official coercion, intimidation, or deception.
A police officer’s giving false or misleading information can destroy the voluntariness of any given consent.
Here, the evidence showed the police tricked, intimidated, and threatened defendant into signing a voluntary consent form. Thus, defendant’s consent to search was involuntary, and all items seized and all statements subsequently made by defendant were suppressed.
Can Police Take Off My Door Panels If I Give Them Consent To Search?
People v. Kats
In People v. Kats, 2012 IL App (3d) 100683 (2012) a trooper was on I-80 when a car pulled in front of the squad and pulled over abruptly.
The officer stopped to assist. This turned it into a traffic stop. He informed the driver he was going to issue a warning for failure to merge.
Defendant had a California driver’s license but the car was registered in Arizona and rented out of Las Vegas. There were mattresses and other large items in the car. Defendant sat in the squad car as the warning was filled out. Defendant was nervous and trembled continuously throughout the traffic stop.
After the trooper wrote the ticket, he and the defendant exited the squad car, and the trooper handed the defendant the ticket. The defendant then began to walk away. The trooper told the defendant that the traffic stop was over and that he was free to go and asked if he could ask the defendant a few questions.
He asked the defendant if there was anything illegal in the vehicle and if there was any possibility that anyone else had put something in the vehicle of which the defendant was not aware. The defendant answered “no” to both questions.
He then asked the defendant if he was responsible for everything in the vehicle, and the defendant responded that he was. He then asked if he could search the vehicle and its contents for contraband. The defendant answered “yes.”
He told the defendant that he could wait in the squad car where it was a little warmer while the search was conducted. The defendant did so. The search was extensive. Police found two motorola handheld walkie-talkies type radios, a plane ticket, and an energy drink, and fast-food wrappers on the floorboard.
Using a screwdriver the officer popped off the dashboard panel. Using the screwdriver and additional upholstery tools the officer removed the paneling on the rear passenger door. In the door the trooper found several bundles of cannabis weighing more than 7 pounds.
Upon review of the stop and the search the court found the trooper did not in any way prolong the traffic stop. By indicating to the suspect the intended object of the search the police officer notified the driver of the reasonable parameters of the search. Consent extended to those areas that are objectively reasonable for the object of the search to be.
This search was reasonable because defendant knew it was a search for contraband. It would be reasonable to find contraband hidden behind a removable door panel. Thus, a reasonable person in the defendant’s position would have understood that he had authorized the trooper to search behind the vehicle’s door panels.
In this case, removing the door panel was relatively easy and caused no structural damage to the car. The trooper did not alter or damage the vehicle or remove anything that could not be easily replaced.
The use of tools did not have any significant constitutional consequences. Especially in this case where the door panel was already slightly ajar such that the officer could peer into the space behind it.
Given the minimally invasive manner in which this search was conducted and the unlimited consent given by the defendant. The search did not exceed the scope of consent.
Can Police Search My Purse If I Give Them Consent To Search?
People v. James
People v. James, 163 Ill.2d 302 (1994) is about a female defendant who was a passenger in a car stopped by police.
The officers directed the driver and the passengers to step out of the car. When defendant exited the vehicle, she left her purse on the front, passenger-side seat of the car.
The driver of the car agreed to a police search of the vehicle. During this search, the officers opened and looked into the purse, where they found cocaine. The passenger was arrested and charged with unlawful possession of a controlled substance.
The question here is if the driver had the authority to give effective consent to search her companion’s purse.
The officer should have ascertained who owned the purse. It would have been objectively reasonable for the law enforcement officer to realize that the purse might belong to one of the passengers rather than to the driver.
All of the adult occupants were women.
The purse could have logically belonged to any one of them. The purse was found on a passenger seat in the car, not on the driver’s seat, thereby tending to the conclusion that the purse belonged to the passenger, not the driver.
The court said police must be required to make reasonable inquiries when they find themselves in ambiguous circumstances.
This does not mean that the police must contest every claim of authority. But sometimes the facts known by the police cry out for further inquiry. When this is the case it is not reasonable for the police to proceed on the theory that ignorance is bliss. The search of this purse was unreasonable.
During A Consent Search Police Probably Can’t Move The Car
People v. Pulido
In part 3 of this car search guide we talked about the ability of police departments to move cars away from the initial traffic scene when they have proper probable cause to search the car.
We talked about People v. Pulido, 2017 IL App (3d) 150215 (August) where the court held that consent to search a car does not ordinarily include permission to tow the car to the police station.
It’s worth mentioning again here. If you recall, the case involved a defendant under investigation by a narcotics unit. The drug unit gave a tip to a patrol officer that defendant’s car had drugs in it. He was stopped for speeding and a drug dog arrived at the scene and alerted to the presence of drugs.
The court also found that defendant consented to a search of his vehicle. The problem was that the police found no drugs during the roadside search, so investigators moved the car to a police station. At the station, investigators found tubes wrapped with black tape in the vehicle’s air filter.
Inside the tubes was methamphetamines.
The court threw out the evidence because it said the probable cause had dissipated after the officers’ initial roadside search failed to reveal any evidence of narcotics.
In regards to moving the car to a police station the court noted that the standard for measuring the scope of a suspect’s consent is that of “objective’ reasonableness,” which requires consideration of what a typical reasonable person would have understood by the exchange between the officer and the suspect.
Given this driver understood the police were searching for drugs when he consented to the search of the car the reasonable inference is that his consent was limited to a search of his vehicle at the site of the stop on the highway. No reasonable person in defendant’s position would have understood that he had just authorized the taking away of his car from the scene.
It is unreasonable to believe that when defendant gave his consent, he also consented to the relocation of his vehicle for an even more invasive search.
The court did not believe that an Illinois citizen who is pulled over on a highway and subsequently consents to a search of his vehicle intends to voluntarily and knowingly consent to have his vehicle removed from the highway and relocated to the local police station for a further search once the initial search on the highway is completed.
Nod Of The Head Can Be Interpreted To Grant Consent To Search
People v. David
In People v. Davis, 2019 IL App (1st) 160408 an officer got a head movement and a whisper when he asked for consent.
Defendant had the great misfortune of buying a white bag of something from a guy under extensive federal investigation. After defendant was seen buying a white bag they stopped his car and immediately searched it.
When the officer asked for consent to search the driver made a movement with his head pointing to the backseat of the car and also whispered, “it’s over there”. The officer understood the driver’s head movement to be a nonspecific indication to check the backseat.
Police searched the back seat passenger compartment area, but did not find the white bag they saw go in the car.
Officers then started taking things apart. In a hidden compartment in the back by the armrest they found a kilogram of cocaine. The compartment also had three semiautomatic guns and an electronic scale. A different panel on the rear passenger side had another compartment with a green bag containing 9-millimeter and .45-caliber rounds.
The court held that on these facts, it was objectively reasonable for the officer to believe that he had permission to search the back passenger compartment—the initial consent to search coupled with the head movement and eye gestures got him that far.
But this didn’t mean the officer necessarily had permission to remove interior panels.
When he asked for consent the officer did not single out any area of the car for inspection and received only general consent to “go ahead and search.” Without giving the driver more information, it would be unreasonable to expect his consent to go beyond a general frisk or pat-down of the interior compartment. The officer did not have full consent to search for a hidden compartment.
The scope of a consent search must consider what a reasonable person would have understood from the exchange between the defendant and the officer. A limited exchange will obviously provide limited consent.
It wasn’t all bad news for investigators.
Like we said, the seller was under heavy surveillance. Thus, police could rely on other information. They knew enough to know there was a white package in the car that likely had drugs in it. The driver’s actions did not extend his consent, as we have discussed, but his actions did indicate that the white package must be hidden somewhere in the car.
The extensive drug investigation experience, together with the facts we have described, amounted to probable cause to search. The officer’s actions exceeded the scope of consent to search, but by the time the officer exceeded consent, he had sufficient facts to amount to probable cause. At that point, the search fell within the automobile exception and was permissible without a warrant.
The Timing Of When Police Ask For Consent Is Important
CAN WAIT AND ASK AT THE END BUT IT HAS TO BE CLEAR THE TRAFFIC STOP IS OVER
People v. Leach
In People v. Leach, 2011 IL App (4th) 100542 officers were investigating a curfew violation.
19 year old defendant was out walking in a residential area around 11 pm. Police stopped him to see if he was breaking curfew. Two officers approached, obtained his identification, and quickly determined his age.
Defendant’s identification card was returned to him. The officer then asked him if he had ever been arrested. He said he was arrested once in connection with a drug raid at his mother’s house.
The officer then asked if he would mind if he searched him. Defendant said, “no, go ahead.” The ensuing search resulted in the discovery of cannabis in defendant’s possession.
The issue was whether the initial stop with the police had ended such that he was unconstitutionally held longer than necessary just so consent could be obtained.
An officer is always free to request permission to search.
Once a seizure is concluded and the defendant is free to discontinue the encounter, a defendant’s voluntary consent to be searched may be obtained unless he is unlawfully seized anew.
So too, during a traffic stop an officer is free to request permission to search a car after the conclusion of a traffic stop so long as the officer does not unlawfully detain the car or its occupants prior to requesting permission.
Generally a traffic stop ends when the paperwork of the driver and any passengers has been returned to them and the purpose of the stop has been resolved.
Returning identification cards and all requisite paperwork is critically important whenever consent to search is asked at the end of the interaction.
Here, the stop ended when defendants identification card was returned to him. At that point, a reasonable person in defendant’s circumstances would have believed he was free to go.
Nothing in the record indicates the police conduct a subsequent seizure of defendant. Defendant points out that he was a young man walking down the street late at night, was approached by 2 officers who posed questions at him, took his identification, and then asked for consent to search.
This might be true, but that did not amount to a sufficiently coercive environment nullifying defendant’s consent to search. The officers actions following the conclusion of the stop did not constitute a seizure. Defendant’ consent to the search was voluntarily given.