A True Auto Search Story

A and B are travelling on I84 in Connecticut in a 1991 Ford Bronco, complete with Grateful Dead stickers on the back bumper, returning home to New York from B's home in Vermont. They had stayed in Vermont after two nights of Grateful Dead concerts. While driving to New York, B asks A if he would like something to drink. A and B have a cooler in the backseat containing beer and soda,the beer for pre-concert drinking and the soda for the road. A says he'll take a soda and starts drinking it. Within a few minutes, they are cut off by a tractor trailer truck. A, the driver, catches up to the truck and proceeds to give the truck the finger and yell obscenities at him. The trucker driver then swerves into A's lane, almost forcing him off the road. A decides he would be better off not provoking the truck driver and further and drops back in traffic.

After passing into New York state, A and B notice a police car parked on the side of the road. As they pass it, it pulls back into traffic, catches up to them, and signals them to pull over.

A pulls over and the officer comes to the window and says that he received a report that A was drinking beer while driving. A responds that he was drinking soda and shows the officer the can. The officer then asks if there is any alcohol in the car and A responds yes, but it's in the cooler in the back seat.

The officer asks A and B to step out of the car and open up the back door so he can look at the cooler. He opens the cooler, sees the inside contents and then directs A to the front of the car and B to the rear left. He asks A where he's coming from, where he's going, and if he has any illegal substances in the car. He then directs A to stay in front of the car and says he's going to see if B's answers match up with A's. The officer asks B the same questions, gets the same answers, and then returns with B to the front of the car. He then says to A and B, "I'm going to search the car now. If you have anything in there that I should know about, tell me now." A and B both state there's nothing in the car. The officer repeats his warning and asks A why he seems nervous. A replies that he was almost run off the road by a semi. A's hand is in his pocket and shaking and the officer directs him to turn his pocket out and show him what's in it. A pulls out a pad that has the license plate number of the truck that almost ran him off the road. The cop then tells A and B to remain in front of the car while he searches the car.

The officer sits in the driver's seat and rummages around the interior of the driver's area and a couple of minutes later, emerges from the car with a pipe containing marijuana. The officer says to A and B, "Is this yours?" and A and B both answer that it is not. The officer then asks A whose it is and how it got in the car. A replies that it must have been one of his friends who left it in the car the previous night. The officer asks where they were hanging out the previous night and A answers Albany. The cop says, "You think I don't know there were Dead shows up there? Do you think I'm dumb?"

The officer then says, "I'm going to search your car. If you have anything I should know about, tell me now." A and B both say there's nothing he should know about. The officer asks A to open up the back of the Bronco and pull out the bags back there. The officer opens up each bag and looks inside, moving around the contents to look for any contraband. After he doesn't find any . . . .

A and B were not arrested, but they got the scare of their lives.

If they had been arrested, would the initial search of the interior of the car be upheld, or would the evidence be suppressed?

Did the search fall under the automobile exception? Did the cop have the probable cause to search the rest of the car?

J. Borg

Emory Law

Answer:

For the initial search of the cooler to be valid, it must have been based upon probable cause.  The officer was able to plainly see that there was a cooler in the back seat because the driver consented to opening the back door of the car.  Under the automobile exception, the warrantless search of the container in the car is not presumed to be unreasonable.  Still, the officer is going to have to show probable cause to search the cooler.

Even if the search of the cooler was valid, the officer still needs probable cause to search the remainder of the car.

The automobile exception to the warrant requirement applies in two major circumstances: 1- when the driver is arrested the car may be totally searched at the station house without a warrant and 2- if the police reasonably believe the car is carrying contraband it may be subjected to a full warrantless search in the field.  Keep in mind that officers may conduct Terry frisks of the interior passenger compartment of the car and containers in the compartment large enough to carry weapons based on reasonable suspicion.  Also keep in mind that officers may conduct searches incident to arrest of the passenger compartment, but they will still need probable cause to search the trunk even with an arrest.