If you are a California resident, you no doubt have heard by now that California voters have legalized the recreational use and possession of small amounts of marijuana, effective immediately. And alcohol has of course been legal since the end of Prohibition. So why would a police officer ever have reason to search your car or vehicle for evidence of marijuana or alcohol? Because numerous situations remain in which you might face criminal charges based on the presence of alcohol or marijuana in your vehicle, including:

  • Driving while intoxicated
  • Driving under the influence of alcohol (DUI)
  • Open container laws
  • Possession of alcohol or marijuana when you are under the legal age limit
  • Intent to distribute marijuana without a legal license to do so

Thus, the police may have plenty of reasons to want to search your car or vehicle for evidence of marijuana or alcohol, but when can they search your car or vehicle?

The Police Must Have Reasonable Suspicion to Pull You Over…

Many of the protections that drivers have from police overreach in searching automobiles comes from US Supreme Court decisions interpreting the Fourth Amendment right against unreasonable searches and seizures. The court has said that, in order to pull over a car and question the driver, the police officer must have “reasonable suspicion” that criminal activity is afoot. This has to be more than a gut feeling or hunch on the part of the officer, and it cannot be based on facts like the make of a car or the racial identity of the driver. Instead, the officer must be able to articulate specific facts that leads him or her to suspect the driver broke a law, such as exceeding the speed limit or swerving between lanes.

…Unless You are at a Valid DUI Checkpoint

That said, police officers may pull over drivers at DUI checkpoints so long as the checkpoints meet constitutional standards, e.g. there is a system for detaining drivers such as every third driver and selections of cars to detain are not done based on the officer’s whim.

There Must Be Further Grounds to Justify a Search

Reasonable suspicion alone, however, will not provide grounds for the police to search your car for alcohol or marijuana, and so there must be an additional factor which justifies the search based on Supreme Court precedent. Such grounds can include:

  • Probable Cause: If the police officer has enough facts at his or her disposal at the time he decides to conduct a search that there is “probable cause” that you committed a crime, then the officer may search the parts of the car justified by probable cause. Probable cause is a higher standard than reasonable suspicion, and the officer must be able to present facts known to him or her at the time of the search that would lead a reasonable person to conclude that the driver had committed a crime.
  • Plain View: If the officer can see marijuana or open containers of alcohol in the car in “plain view” during the time that he is questioning you, he may seize that evidence (assuming the stop was justified by reasonable suspicion).
  • Search Incident to a Lawful Arrest: If the police officer has probable cause to arrest you without conducting a search, e.g. if you fail a breathalyzer test, then in some cases he may be able to search the car for evidence related to the arrest such as open containers of alcohol.
  • Consent: If you voluntarily consent to the police searching your car, then the police may do so. “Consent” obtained by force, however, is not considered voluntary and will not justify a search.

There may be other grounds for an officer to search your car, but these are among the more significant ones that come up. Even in 2016, the law relating to search and seizure of a car is still evolving and complicated. With all of these issues, an experienced criminal lawyer will analyze your situation to determine whether the search was justified.

An Experienced Orange County Defender in Your Corner

If you are the subject of a criminal investigation or have been placed under arrest, contact Orange County criminal defense attorney Bart Kaspero today for a consultation to discuss how he can best protect your rights while defending your freedom in all criminal matters.

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About the Author: Bart Kaspero

Bart Kaspero is an experienced criminal defense and regulatory attorney who has focused on using technology and the law in bringing privacy to criminal records. His research has been published in several legal journals and his unique background has helped a broad spectrum of clients. He has provided legal training to lawyers across the US on how to navigate complex criminal record legislation and how to effectively provide privacy to those with past arrests, charges, and convictions. His innovative methods have earned him a top position of authority on the subject of criminal record privacy as well as trust within the criminal data supply chain.