Sometimes, when it comes to matters of personal privacy, the issue is less “am I hiding something” than “why should I have to prove I’m not hiding something?” That's especially true when it comes to your car.
If you’ve ever driven in America, you’ve probably been stopped by a cop on a BS charge, especially if you’re driving with out-of-state plates, a strange haircut, or the “wrong” skin color for the area.
When a police officer stops you, it’s your job to provide them with your license and registration and to answer any pertinent questions they may have. But do you have to let them search your car? More importantly, can the police search your trunk without your consent?
The short answer is, yes, a cop can search your car without your permission—under particular circumstances.
A police officer technically cannot search your trunk unless they have a warrant or probable cause. Probably cause is a requirement included in the Fourth Amendment that needs to be met before a police officer can make an arrest, search your person or property, or obtain a warrant.
Probable cause is the idea that a police officer must have a reasonable basis for believing a crime may have been committed or is in the process of being committed. So, unless a police officer pulls you over with a warrant, they’re going to need probable cause to search your trunk.
Understand probable cause before you get behind the wheel
The key to protecting your rights if or when a police officer aims to search your vehicle is to know what does and does not equal probable cause.
As Flex Your Rights explains, minor traffic violations like speeding, a broken tail-lights, or an expired registration do not meet the standards of probable cause. However, if an officer sees or smells something they consider to be contraband, like a joint in your ashtray or the lingering scent of pot, that can be cited as probable cause to search your trunk.
So, what’s all this mean to you? The short answer is, in the field, it is up to the police officer whether the standard for probable cause has been met. If they violate your civil rights, you can fight it in the future. Follow these simple steps from Professor Joseph Thai, a professor of Constitutional Law at the University of Oklahoma College of Law, to make sure you’ll be able to do so properly.
From the moment you are pulled over, start recording the encounter on your phone
You have a First Amendment right to record the police as long as it does not interfere with their investigation. Don’t be a jerk and hold the camera up to the officer’s face and shout “I’m recording this.” Calmly tell them you’re recording the encounter for your records. If the officer demands you stop recording without telling you why, lock your phone so the recording of the demand can’t be erased later by the officer.
Cooperate and ask to leave
Hand the officer your license, registration, proof of insurance, and whatever else you legally need to provide in your state. When the officer gives you back your documents (and, perhaps, issues you a ticket or a warning), ask if you are free to leave.
You are not legally required to make chit chat with the police. And according to a 2015 Supreme Court decision, police may not make you wait any longer than it takes to address the issue at hand—and they can't make you wait for a police dog to show up. So, once your obligations have been met, it is OK to ask if you can go.
If they ask to search your car, be polite but say no
It’s possible to be polite and keep your constitutional rights. While there are some lousy cops out there, most police officers are just trying to do their job. Getting snippy with them will escalate the situation and make you look like you have something to hide. You don’t want to give them anything they can later cite as a reason for searching you. If the officer asks to search your car, say firmly—but politely—that you do not consent to a search of your vehicle.
If the officer says, “Well, I think I smell pot” (or something that otherwise helps him or her establish probable cause), ask to step out of the vehicle, continue recording, and make sure to capture the entire search on video. You have the option of uploading the footage later or turning it over the media or police department if you feel you were unfairly searched.
Keep your perspective
It’s also important to remember that just because something isn’t legal doesn’t mean the police aren’t the police. When you’re pulled over on the side of the road, there’s no judge or jury nearby—just you and the officer. To reiterate the key points: Be polite, follow their instructions, and record everything.
You never know what kind of police officer you’ll be dealing with until you’re dealing with them. Stay on your toes, stay polite, and keep a record. Even if you do everything right, you could still get searched even when it isn’t legal. If the officer chooses to search your car anyway, keep the stakes low, and have what you need to fight back in court.