The simple answer is no.
This brings into question the actual Fourth Amendment, which we’re going to (for our purposes for documenting history), we will discuss.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Historically, the British – and this was obviously prior to the constitution and the Bill of Rights – had a habit of coming in and simply taking things or taking people. They didn’t put it in front of a judge and obviously it angered the American colonials and that’s part of the reason why you see this represented in the constitution and in the body of the Fourth Amendment.
As we’ve moved forward and we’re 230 years into the founding of America, and especially in the 20th century, a large part of the meaning of the Fourth Amendment has essentially been taken away.
By that I mean by precedents that have been issued by the Supreme Court. Basically starting in the 1920's right up into the present and with each case and with each precedent, they carved out another exception to the Fourth Amendment that made it easier for police to move forward without a warrant, without probable cause. There’s something called reasonable, articulated suspicion which is actually a lower standard than probable cause and there’s probably 50 or 60 cases.
When you combine those bodies of cases together over a period of 40 or 50 years, for the most part, the Fourth Amendment in large part really doesn’t exist anymore. It exists on paper and you can certainly still make arguments in a criminal court but a lot of protections that we enjoyed as Americans have been taken away.
Eighty percent of the time when a police officer asks someone, “Hey, man, is it all right if I search your car?” and then just have a look around to make sure there’s nothing in there, more often than not because people are trying to cater to the police officer, they will simply say yes.
In doing so, what they’ve done is they’ve waived their Fourth Amendment rights simply because they don’t know their rights under the law. I would say something to the effect of yes-but or if you want to be more – because you can actually limit the scope of whatever it is that they want to do.
You could say, “Yes, but I don’t see any reason for you to actually go through my physical car. If you want to make a pass with your flashlight just to make sure that there’s no weapons or anything, feel free to do so.”
You can actually limit the scope of the search that the officer wants to do. That’s provided he doesn’t already have reasonable, articulated suspicion or probable cause.
Why is this important to you? Well, there’s also case law on the books that says that the Supreme Court and judges generally are not going to look to the subjective intent of the officer when he pulls you over. What does that mean? Well, there’s a case in which the police very clearly pulled somebody over. They had a taillight out which is a classic pretense for a police officer to pull somebody over.
They pulled the guy over for a taillight, knowing full well that likely he had drugs in the car and they used the taillight as the pretense for pulling him over because it was a technical violation of the law.
He stopped on the side of the road and allowed them to pass their flashlight through his car and ultimately finding whatever it was they were looking for.
Interestingly enough, a flashlight in your car actually is not a search under the technical term of the constitution nor is a dog actually walking around the outside of your car. That’s not considered search under the constitution either.
The point is, is – some people disagree – personally, I’m a civil libertarian and I think I read this I think literally. I think that should be the letter of the law.
The judges however set the law, the Supreme Court judges, and they set the precedent, and for purposes of essentially preserving evidence, the judges have allowed the automobile exception to essentially become the rule. The exception has superseded the rule and the rule of law no longer exists because there’s about 10 or 12 different exceptions that when you place them all together, when you’re in an automobile, you have an extremely limited sense of what your Fourth Amendment protections actually are.
It’s only when you actually get into your home that the Fourth Amendment becomes more relevant, because the home and an automobile are two different things and the reasoning behind it is the judges consider an automobile as mobile. In that respect, you could drive off with the evidence.
In large part, that is the reason behind all of these automobile exceptions and why you are subject to search when you’re pulled over. Keep a civil tongue. You can say, “No, officer,” or “Why is it that you want to search my car, officer? What’s the reasoning behind it?”
It’s a very fine line that you’re walking because obviously you want to be polite but you also want to let him know that you’re informed of your rights.
So be diplomatic and the important thing is, is don’t waive your rights by immediately consenting, like 80 percent of the people do, because again, this also implies the Fifth Amendment.
Now you’re providing evidence against yourself to the prosecution and making prosecuting yourself easier to do.
If you have questions about the Fourth Amendment, automobiles or auto accidents or law generally, contact the Hartman Law Firm at 843-300-7600.
