Can the owner-driver of a vehicle consent to the search of a passenger’s personal property found in the vehicle?

In Michigan, a driver or owner of a vehicle cannot consent to search the personal property of a passenger in the vehicle. In order to provide lawful consent to search, a person much have actual authority to give consent or he or she must clearly 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 passenger is found to be holding a backpack in her lap. The officer’s ask the driver if they have permission to search the car and anything inside the car. The officer’s search the backpack and find illegal drugs. Was 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 for the suppression of any evidence found in the backpack and dismissal of 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 rights of the passenger and the evidence should lawfully be thrown out of court!

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What if the driver and passenger mutually own a container, bag or box in the car?

In a situation where both the passenger and the driver have a right to possess or control a container, bag or box in a car, either one of them can give consent, even if the other objects. Evidence found in the container, bag or box would be admissible against either the passenger or the driver under these circumstances. If both the passenger and driver objected to the search or did not consent, the officers would have to get a search warrant to legally look inside. Failure to get a search warrant would result in potential suppression of the evidence.

What if a bag or box is owned by someone else but the driver appears to have the authority to consent to the search and agrees to let the officers look inside?

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 owner of the bag and the 4th Amendment would not apply to this situation.

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Scope and validity of consent

An important point to remember is that consent to search one item does not “open the floodgates” to search everything. If the passenger in the examples above had two backpacks, and he consented to the search of one, the officer would not have authority to search the second one unless he 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 duress, and consent would not be valid because it was not given freely and voluntarily. In many cases officers threaten and coerce people and then deny engaging in this offensive and unconstitutional behavior. There are not many lawyers who 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 and search and seizure issues and there is no challenge that is too great.

Other grounds to search…probable cause

The rule above deals only with the issue of consent. There are other grounds for a search of a passenger’s personal property even if no consent is given. For instance, if the officer sees the barrel of a pistol jutting out from a backpack or other container, he may search the container based upon probable cause to believe a crime is being committed (carrying a concealed weapon). Before possession of marijuana became generally legal, if the officer had smelled the strong aroma of marijuana coming from a passenger’s bag or container, he 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.

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Other grounds to search…exigent circumstances

If an officer observed a closed container in a vehicle and heard an infant crying inside of the container, the officer would be entitled to search it based upon the grounds that he believed the baby was in distress or in imminent danger. If the backpack in question was on fire or soaking in water, a court may find that the potential destruction of evidence was an exigent circumstance justifying a search without consent or a warrant. There are many potential examples of exigent circumstances which can be imagined. They are simply any circumstances amounting to an emergency which may pose a danger to the public or the officer, or may potentially cause the imminent loss of evidence of a crime.

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, and 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 a Request for Assistance Form and we will contact you promptly.

We will find a way to help you and, most importantly,
we are not afraid to win!

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