Evidence seized illegally from a passenger’s property is subject to suppression.
Can the owner-driver of a vehicle consent to the search of a passenger’s personal property found in the vehicle? No! Police routinely violate the rights of passengers when a driver gives consent to search a vehicle.
A Driver Cannot Consent to a Search a Vehicle Passenger’s Property
In Michigan, a driver or owner of a vehicle cannot consent to a police search of a vehicle passenger or personal property. To provide lawful consent to search, a person must have actual authority to give consent or appear to have the legal right to consent from the police officer’s perspective.
Consider the following example:
A police officer stops a vehicle occupied by a driver and a single passenger. The officer observes the passenger holding a backpack in her lap. The officer asks the driver if they have permission to search the car and anything inside the vehicle. The officers search the passenger’s backpack and find illegal drugs. Were the search and seizure legal? According to search and seizure law in Michigan, the answer is “no!” An aggressive and zealous defense lawyer will fight to suppress any evidence found in the backpack and dismissal all charges against the passenger. Because the driver did not have actual or apparent authority to grant the officers consent to search the backpack, the search would violate the passenger’s rights, and the judge could throw the evidence out of court!
What if the driver and passenger mutually own a container, bag, or box in the car?
If the passenger and driver have the right to possess a bag, either can consent, even if the other objects. Evidence found in the container, bag, or box would be admissible against the passenger or driver. If the passenger and driver objected to the search or did not consent, the officers would have to get a search warrant to look inside legally. Failure to get a search warrant if the police search a vehicle passenger without consent would result in potential suppression of the evidence.
What the driver appears to have authority, but the bag is owned by someone else?
In a case where someone objectively and reasonably appears to have ownership or authority to grant consent and the officers rely on that belief, the search is valid even if the true owner would have objected or did not consent. The evidence would be admissible against the bag’s owner, and the 4th Amendment would not apply to this situation.
Scope and validity of consent
Consent to search one item does not “open the floodgates” to search everything. If the passenger in the examples above had two backpacks and consented to the search of one, the officer would not have the authority to search the second one unless they had probable cause to do so and either exigent circumstance (a potential emergency) or a warrant. Consent, to be valid, must be given freely and voluntarily. If the officer makes a threat of some kind, such as, “I will lock you up and keep you locked up until you allow me to search your backpack,” that would be coercion, and consent would not be valid because it was not freely and voluntarily. Officers often threaten and coerce people and deny engaging in this offensive and unconstitutional behavior. Not many lawyers are willing and able to challenge the officers and expose their conduct to a court. The defense lawyers with LEWIS & DICKSTEIN, P.L.L.C. frequently successfully handle difficult and complex 4th Amendment search and seizure issues. No challenge is too great, even when the police search a vehicle passenger or their property.
Other grounds to search: probable cause
The rule above deals only with the issue of consent. There are other grounds for searching a passenger’s personal property, even if they do not permit the search. For instance, if the officer sees the barrel of a pistol jutting out from a backpack or other container, they may search the container based upon probable cause to believe a crime was committed (carrying a concealed weapon). Before marijuana possession became generally legal, if the officer had smelled the pungent aroma of marijuana coming from a passenger’s bag or container, they would have been able to search it based upon probable cause. If the passenger in the previous examples had blurted out, “Officer, I just want you to know the cocaine in my backpack isn’t mine,” that would provide grounds for a search based upon probable cause.
Other grounds for the police to search a vehicle passenger: exigent circumstances
If an officer observed a closed container in a vehicle and heard an infant crying inside the container, the officer could perform a warrantless search because of imminent danger. Suppose the backpack in question was on fire or soaking in water. In that case, a court might find that the potential destruction of evidence was an exigent circumstance justifying a search without consent or a warrant. There are many possible examples of exigent circumstances. They are any circumstances amounting to an emergency that may pose a danger to the public or the officer or potentially cause the imminent loss of evidence of a crime. If there are no exigent circumstances or another lawful warrant exception, an attorney experienced with Motions to Suppress and Dismiss can challenge the seizure and request dismissal of the charges.
Experienced and Effective Lawyers Challenging Searches and Seizures
The dedicated attorneys at LEWIS & DICKSTEIN, P.L.L.C. have decades of experience fighting illegal searches and seizures. We take this responsibility extremely seriously. We know it is your freedom on the line. We believe in zealously defending your constitutional rights. We have successfully represented thousands of clients on state and federal charges in Oakland, Macomb, Wayne, Washtenaw, Livingston Counties, and throughout Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation.
Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.