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Search and Seizure for Police and Prosecutors

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III. Search of a Vehicle Based on Probable Cause plus Exigent Circumstances.

 

  1. Search of a vehicle based on probable cause plus exigent circumstances.
    1. Absent a recognized exception to the warrant requirement, a warrantless search of a vehicle requires probable cause to believe evidence of a crime will be found, PLUS exigent circumstances that justify immediate action.
    2. Recognized exigent circumstances.
      1. Danger of the imminent escape of a suspect.
      2. Danger to the safety of police officers or others.
        1. Officer must have an articulable suspicion the driver or occupant of the vehicle is armed and dangerous, which can be based on:
          1. Reasonable suspicion the suspect is or was involved in an inherently dangerous crime, OR
          2. The circumstances of the stop, including the time of day, location, and suspect’s actions and demeanor.
      3. Danger of destruction of evidence.
        1. There must be a possibility evidence will be destroyed if police wait for a warrant.
        2. Validity of the search depends on the circumstances at the time, such as the following:
          1. the time it would take to get a warrant,
          2. The time of day, and the location of the vehicle,
          3. The danger to police while a warrant is obtained,
          4. Whether the suspect is aware of the police investigation, and
          5. The destructibility of the evidence
    3. The scope of a valid search of a vehicle under exigent circumstances.
      1. A search based on danger to officer safety is limited to the area of the vehicle accessible to the driver or occupants that might contain a weapon, and is limited to a search for weapons.
      2. A search based on the danger that evidence could be destroyed.
        1. May extend beyond the area accessible to the driver and occupants,
        2. May extend only into areas believed to contain contraband or other evidence
        3. May include the opening and searching of containers capable of holding contraband or other evidence
        4. May be based on the circumstances surrounding the search that justify immediate action.
        5. Because of location, time of day, or other factors, it would be dangerous to officer safety to guard the vehicle while a warrant is obtained
          1. Officer has reason to believe the vehicle will be moved or the evidence will be removed from the vehicle before a warrant can be obtained

A warrantless search of a vehicle, other than a search incident to arrest or an inventory search, requires probable cause to believe contraband or other evidence of a crime will be found in the vehicle,31 and exigent circumstances to justify conducting the search without a warrant.32 Exigent circumstances that justify a warrantless search of a vehicle are circumstances which lead an officer to reasonably believe that swift action is necessary “to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.”33 To establish the validity of a warrantless search of a vehicle, the State must establish that the officer who conducted the search reasonably determined exigent circumstances existed.34 If a reasonable, well-trained officer would have found the existence of exigent circumstances to justify a warrantless search, the search is deemed valid.35 The State does not need to establish the defendant was “in fact preparing to escape, destroy evidence, endanger life, or damage property.”36

Of the three recognized exigent circumstances that justify a warrantless search – threat to the safety of officer or others, threat of destruction of evidence, and threat of the suspect’s escape – the two that apply best to the warrantless search of a vehicle are the safety of officers and the public and the threat of the destruction of evidence.37

The exigent circumstance of the threat to officer safety will justify a warrantless search of a vehicle if the officer had an articulable suspicion that the driver or occupant was armed and dangerous.38 Such a suspicion may be based on the fact that the driver or occupant is suspected of being involved in an inherently dangerous crime, such as aggravated assault.39 It may also be based on the circumstances of the stop, such as the time of day, the driver’s demeanor or behavior, and the driver’s answers to questions related to the purpose of the stop.40

The related exigency of a threat to the safety of others may justify a more expansive search. For example, officers who have probable cause to believe the occupants of a vehicle possess a firearm on school property are justified in searching the vehicle for the firearm after arresting and securing the occupants.41 Such a search need not end upon the discovery of a firearm. The officer may search “every place inside [the vehicle] where a weapon and its explosive ammunition might be located.”42

To justify a warrantless search under the exigent circumstance of the possibility of destruction of evidence, there must exist a real possibility that evidence will be destroyed if law enforcement officers cannot enter the vehicle before they obtain a search warrant.43 The emergency circumstances creating the possibility of the destruction of evidence will vary from case to case. Therefore, the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the presence of on-lookers at the scene of the arrest who can see the contraband or evidence in plain view,44 (2) the degree of urgency involved and the amount of time necessary to obtain a warrant,45 (2) the time of day and the reasonable expectation of a tow truck arriving before the vehicle leaves,46 (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought,47 (4) information indicating the possessors of the contraband are aware that the police are on their trail, (5) the destructibility of the contraband48, and (6) the knowledge that efforts to dispose of the contraband and to escape are characteristic behavior of persons engaged in the suspected crime.49

The scope of a warrantless search of a vehicle depends on the exigent circumstances that justify the search. In other words, the reason for searching will govern the scope of the search. If the reason for searching is to protect officer safety during an investigatory stop, for example, then the search must be limited to that reason.50 Therefore, a protective search of a vehicle must be limited to a “sweep” of the seats and floors of the vehicle to check for weapons accessible to the driver or other occupants.51 A protective search conducted under these circumstances is justified by exigent circumstances and, therefore, is valid.52

On the other hand, when the reason for the search involves the accessibility of the vehicle to a group of people, or the possibility of the destruction of evidence, the search may be extended beyond the area immediately accessible to the driver. In fact, the driver need not be present during the search. For example, when an officer has probable cause to believe contraband or other evidence will be found in a vehicle, and believes that the vehicle might be moved before a warrant could be obtained, the officer may search the vehicle.53 Such a search may include a thorough search of all parts of the car reasonably believed to contain contraband or other evidence, and may include opening containers found in the vehicle.54 However, the validity of such a search will depend on the totality of the circumstances.55

 

ENDNOTES

31 Under the Fourth Amendment, only probable cause is necessary; exigent circumstances need not exist to justify a warrantless search of a vehicle. That rule is often referred to as the automobile exception to the warrant requirement. However, Article II, Section 10 of the state constitution requires both probable cause and exigent circumstances.

32 State v. Leticia T., 2014-NMSC-020, ¶¶ 11-15, 329 P.3d 636; State v. Rowell, 2008-NMSC-041, ¶ 27, 144 N.M. 371, 188 P.3d 95; State v. Gomez, 1997-NMSC-006, ¶ 39, 122 N.M. 777, 932 P.2d 1; State v. Valdez, 1990-NMCA-14, ¶ 14, 111 N.M. 438, 806 P.2d 578. 

33 Gomez, 1997-NMSC-006, ¶ 39 (quoting State v. Copeland, 1986-NMCA-083, ¶ 14, 105 N.M. 27, 727 P.2d 1342).

34 Gomez, 1997-NMSC-006, ¶ 40.

35 Id.; see also Rowell, 2008-NMSC-042, ¶ 31 (Explaining that “where the circumstances make obtaining a warrant objectively unreasonable, an immediate warrantless search will be upheld.”); Leticia T, 2014-NMSC-020, ¶ 22 (“[W]e should not let our preference for warrants result in overriding an officer’s on-the-scene decision to act immediately where immediate action is one of the lawful options.”).

36 State v. Snyder, 1998-NMCA-166, ¶ 20, 126 N.M. 168, 967 P.2d 843.

37 Because the other two recognized exigent circumstances justifying a warrantless search apply more logically to a warrantless search of a place, those circumstances are discussed in another section of this manual. See supra at pp. 126-129.

38 State v. Garcia, 2005-NMSC-017, ¶ 30, 138 N.M. 1, 116 P.3d 72. Such a search is similar to a pat down of a person during an investigatory stop; both searches are limited to checking for weapons. See Arredondo, 1997-NMCA-081, ¶ 22.

39 Id. ¶ 16.

40 State v. Chapman, 1999-NMCA-106, ¶ 15, 127 N.M. 721, 986 P.2d 1122; State v. Madsen,2000-NMCA-050, ¶ 21, 129 N.M. 251, 5 P.3d 573.

41 Rowell, 2008-NMSC-041, ¶¶ 33-35; see also Leticia T., 2014-NMSC-020, ¶¶ 11-15 (officers who had probable cause to believe the occupants of a vehicle threatened others by pointing a gun at them from through a window of the vehicle were justified in searching the vehicle for the gun after detaining the occupants).

42 Rowell, ¶ 35.

43 Gomez, 1997-NMSC-006, ¶ 42 (citing State v. Ortega, 1994-NMSC-013, ¶ 7, 117 N.M. 160, 870 P.2d 122); see also State v. Wagoner, 1998-NMCA-124, ¶ 12, 126 N.M. 9, 966 P.2d 176 (applying requirement to warrantless search of a home).

44 State v. Bomboy, 2008-NMSC-029, ¶ 13, 144 N.M. 151, 184 P.3d 1045. 

45 Copeland, 1986-NMCA-083, ¶ 15 (warrantless search of home was justified because it would have taken the officers two and one-half to three hours to get a warrant); Snyder, 1998- NMCA-166, ¶ 21 (nearest magistrate was 35 miles away from border checkpoint where defendant was stopped).

46 Gomez, 1997-NMCA-006, ¶ 40.

47 Id. 

48 Copeland, 1986-NMCA-083, ¶ 15 (metabolizing of alcohol in the defendant’s blood); but see State v. Nance, 2011-NMC-048, ¶ 22, 149 N.M. 644, 253 P.3d 934 (dissipation of alcohol, alone, is not a sufficient exigency to justify a warrantless entry into a home).

49 Wagoner, 1998-NMCA-124, ¶ 12 (quoting United States v. Rubin, 474 F.2d 262, 268 (3rd Cir. 1973)).

50 See Arredondo, 1997-NMCA-081, ¶ 22.

51 Id. ¶ 18.

52 Id. 

53 See Gomez, 1997-NMSC-006, ¶ 41.

54 Id. (search conducted late at night with party-goers milling about the scene); see also Rowell, 2008-NMSC-041, ¶ 35 (emphasizing the presence of on-lookers at the scene of the arrest as a factor establishing the exigency).

55 Id. ¶ 42; Rowell, 2008-NMSC-041, ¶ 8.