Interviewer: What are the most common scenarios in which a vehicle will be searched? Do the police usually just say, “Do you consent to me searching your vehicle?” or do they just say, “We’re going to search your vehicle,” and what happens after that is said?
Kevin: In most DUI circumstances, an officer does not request permission to search a vehicle. Typically, the officer will do what is called “inventory search,” as a ruse to look through the contents of the vehicle.
An inventory search is a way of getting around the warrant requirement by searching the vehicle for items that need to be taken into possession by the officer, so that there can’t be a claim later on that a valuable possession went missing.
Interviewer: Can you thwart an inventory search by just locking up your car?
Kevin: It could work, of course. However, a private tow truck driver tows most cars from the scene. Officers will sometimes try to inventory the vehicle before the tow truck arrives in order to make sure that there’s nothing valuable inside that may go missing.
Can You Prevent an Inventory Search?
Interviewer: Can you say to them, “No, I don’t want you to do that and I waive any right if my possessions are lost”?
Kevin: Yes. A driver can say, “no,” and an officer can try to ignore the request and still claim that it was an inventory search. Generally, inventory searches aren’t even done in New Jersey. Sometimes they’re done in Pennsylvania.
Improper Procedure for an Inventory Search Will Result in Inadmissible Evidence
If the inventory search is not done according to a set police policy and exclusively just to determine if there are certain possessions in the vehicle that need to be noted before the cars towed or stored, then that inventory search will be seen as an illegal search of the vehicle.
Sometimes an officer will ask for consent to search a vehicle and that may require the recitation of a pre-written consent form. The driver can always refuse to give the officer consent to search the vehicle.
Interviewer: What happens if you refuse the search?
Kevin: The officer has to go get a warrant. The officer would need probable cause to search the vehicle. The officer would need probable cause to believe that there are weapons or drugs or contraband in the vehicle, and then provide that information to a judge who would issue a warrant to search the vehicle.
Without probable cause to believe that there is contraband or other illegal substances in the vehicle, then a warrant would never be issued.
What To Say To Prevent an Inventory Search
Interviewer: Does it help you to say, “I do not give you permission and you have to get a warrant.” Does that help a person at all? Does it raise the standard under which police officers have to be able to search your vehicle?
Kevin: For all practical purposes, a driver simply can say, “You do not have consent to search my car,” and the officer shouldn’t search the car. Now, an officer can certainly lie and say that the person consented and then proceed to search the vehicle.
However, in a scenario where there’s videotape with audio on it, that will usually show that the officer didn’t get consent and, therefore, the search would be deemed illegal.
Interviewer: Does it make a difference if you say, “I don’t consent,”
Kevin: As I mentioned, in New Jersey, they don’t do inventory searches, as far as I’ve seen. In Pennsylvania they do. If there is some valid inventory policy in place and the officer’s simply following the policy, then, presumably, the officer can still do the inventory of the vehicle.
While doing the inventory, the officer shouldn’t be in the process of looking for illegal evidence. He or she really should just be doing a cursory search of the vehicle to see that there’s nothing in plain view that needs to be taken into possession and then inventoried.
You Do Not Have the Right to Be Present During an Inventory Search
Interviewer: Do you have a right to be present, to make sure the police follow the correct procedure?
Kevin: Generally, once the officer starts searching your vehicle, the person is in some type of police custody. The DUI suspect is in cuffs in the back of a car or taken away from that general area during a brief investigatory detention.
The driver doesn’t necessarily have the right to be present while the officer is doing the inventory search of the vehicle.
Interviewer: What’s to stop the police from falsifying evidence and planting evidence?
Kevin: If you have a crooked police officer that is planting evidence, he or she may get away with it. Currently, there are plenty of officers who have attempted to plant evidence and been caught doing it.
From what I’ve seen, other law-abiding police officers will turn their fellow bad police officers over to supervisors or mention it to a prosecutor or even the defense attorney.
There really isn’t much that you can do to prevent a person planting something in the car and then lying about it, if you’re not present or if there’s no video. Even if you are present, it becomes the police officer’s word against yours.