Getting pulled over for a traffic infraction never makes your day. It’s even more stressful if the police then ask to search your car. What exactly are the rules?

It all depends on the circumstances, says Liz Crotty, a criminal defense attorney at Crotty Saland.

“The police must have reasonable suspicion of criminal activity to search, and they must be able to articulate that suspicion,” she says.

Probable Cause and Warrantless Searches

It’s basic civics. The Fourth Amendment protects people from unreasonable searches and seizures in the U.S. To justify a search, there must be some basis to believe a crime has been committed. “But because ‘reasonable suspicion’ is a subjective standard explains why it’s litigated constantly,” Crotty adds.

Let’s look at a reasonable search first. Perhaps someone gets pulled over for running a stop light. The officer approaches and smells marijuana, or the driver appears drunk. There is now reasonable suspicion that they’re driving under the influence. The officer may reasonably search the car for more evidence.

But there are limits. The officer in this example can search the car’s open areas for, say, a joint thrown on the floorboard but cannot search areas that aren’t in public view. An empty liquor bottle on the seat is evidence obtained during a reasonable search. A gun accidentally found in the trunk is not. “The glove compartment may technically be considered in plain view, if you had to get your license or registration from there,” Crotty adds.

It’s problematic when the evidence is found using what Crotty calls “broken-tail-light policing.” Perhaps an officer says the stop was because the driver didn’t signal during a left turn.

“I’ll say, ‘Did you write a ticket for the traffic infraction?’” Crotty says. “And they’ll say ‘no.’ Well, that was the whole basis for the stop!”

Say No, Politely, to a Vehicle Search

When an officer asks permission to search your car, it might seem obliging to agree, but it’s not a good idea, says criminal defense attorney Fran Hoffinger at The Hoffinger Firm. There could be something in your car that leads to criminal charges, even if a passenger left it there.

“People always think that saying ‘no’ means you must be guilty. But police don’t always have a right to conduct a search,” Hoffinger says. “If you give them your consent, then they do, because you consented.”

It’s also not a good idea to answer a lot of questions: Where were you this evening? Do you have anything in your car that you shouldn’t?

“You have a right to remain silent,” Hoffinger says. “And my advice always is: Don’t answer questions, other than your name, address and other identifying information. Be as quiet as possible.” Things you say might be used against you.

And if a police officer decides to search your car without permission or reason? Don’t argue, Hoffinger says.

“Let your lawyer do the arguing,” she says.

Police have to articulate their reasons for stops and seizures before a judge, she says, and if their justifications aren’t reasonable or lawful, the court may suppress the evidence.

Or the case might be dismissed, as in the case of one of Crotty’s clients who was a passenger in a cab that was stopped. Several plain-clothes officers approached and began yelling at the cab driver without announcing they were police. Crotty’s client yelled from the back seat, “What are you doing? He didn’t do anything wrong.”

Officers searched the cab and found no evidence of a crime, but Crotty’s client was still charged with obstructing the officers.

“It was a crazy case,” Crotty says. “The obstruction happened before he was even aware that they were the government. And they couldn’t really say he was obstructing, because the officers weren’t doing anything that was enforcing a law.”

A judge agreed and dismissed the charges.

For more information on this area of law, see our criminal defense overview and traffic violations overview, or consider reaching out to a criminal defense attorney for legal advice.