NMA E-Newsletter #266: Warrantless Vehicle Searches Part 2—The “In Plain View” Doctrine

This is the final part of a two-part series on warrantless vehicle searches written by NMA Texas member Ted Levitt, who is not an attorney but who has done extensive legal research on the subject. Read Part 1 here. Please note that neither of these articles should be construed as legal advice.

The circumstances justifying a vehicle search get more complicated under the “In Plain View” doctrine.

The U. S. Supreme Court in Texas v. Brown (496 US 128 [1983]) and New York v. Class (475 US 106 [1986]) established some of the basic rules for vehicle searches. For the state to use evidence obtained from a vehicle search the officer must have been in a position that “he or she has the right to be in” to see the evidence (Harris v US 390 US 234 [1968]). A search of your trunk as the result of a simple traffic offense, without either your permission or some definable probable cause, generally doesn’t pass this test.

Officers may search a vehicle and seize evidence after a lawful traffic stop if there is evidence of illegal activity in plain view. For example, the officer sees a baggie of marijuana in the center console cup holder when he approaches the vehicle to get the driver’s information. The officer may seize the baggie and arrest the driver or passengers. The officer may then conduct a warrantless search of the vehicle for other drug-related items or criminal activity since the baggie provides probable cause that other evidence may be present.

There are limits, however, and the officer may not indiscriminately search. He may look in the glove compartment if it’s unlocked, under the seat or dash and in the back seat. If the glove compartment or console is locked, he’ll generally need your permission or a warrant to open it. Likewise for any closed containers (such as a gym bag or brief case) that are outside of the driver’s “reach or area of control.”

The exception is if the officer has first established probable cause. This is because the items in these containers are not “in plain view” nor do they relate to the reason the vehicle was stopped in the first place, which was an alleged traffic violation (see the Knowles decision in Part 1). Using the gym bag example, probable cause could be established by an alert from a drug sniffing dog or from the officer stating to the court that he smelled marijuana.

Several courts have ruled that compartments in the far back of a vehicle (SUV’s and mini-vans), that are beyond the reach or control of the driver or passenger, are off limits without the driver’s permission or a search warrant. Pickup trucks, SUV’s, mini-vans, motor homes, campers, enclosed utility trailers and 5th wheeler trailers create further concerns regarding where and when an officer may search. The utility box in the bed of a pickup truck is generally off-limits. (Editor’s Note: A 2012 Ohio law makes it illegal to construct illegal compartments in a vehicle for the purposes of concealing contraband. An Ohio motorist was recently arrested and charged under the law even though no contraband was discovered during a routine traffic stop.)

Motor homes that are moving or in transit are generally fair game because there is no separation of areas, while campers and 5th wheel trailers are off limits without the driver’s permission or a search warrant. A motor home that is parked in a driveway, storage facility or in trailer park is treated like a home—off limits without the owner’s permission or a search warrant (California v Carney 471 US 386 [1985]). As for a motor home on the move it may also be argued that anything not within the driver’s immediate reach or area of control is off limits.

Denying an officer the right to search your vehicle may result in a lengthy delay because he may call for a drug dog to “sniff” your vehicle—a questionable but routine way for police to manufacture probable cause. Such a search denial will not go over well with the officer and will raise his suspicion that you have something to hide. Don’t fall for the officer’s standard retort: “If you have nothing to hide then you shouldn’t be concerned.”

If you are absolutely certain you have nothing to hide you may wish to allow a search for expedience purposes, but that opens the door wide for anything found in the search. Allowing an officer to search a vehicle that is driven by others (e.g., your kids and their friends or a co-worker) is risky because you do not know what may have been left in the vehicle. If the officer finds a few marijuana seeds on the floor or a crack rock under the seat, you will most likely land in jail.

As a personal note based on my experience as an auxiliary police officer for eight years, the use of an “in plain view” search pursuant to a lawful traffic stop is generally in the public’s best interest because it can provide evidence of real criminal activity. We, the driving public, may have to be a little more forgiving of this activity in order to get criminals off our streets. Let your conscience be your guide.

The courts are constantly redefining what is and isn’t legal with respect to a vehicle search. I suggest you contact an attorney in your state for clarification on anything I have stated in this article that may give you concern. Remember, laws vary from state to state and are frequently “tweaked” by the courts.

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