You have a right under the Constitution to refuse all searches of yourself or your property. This isn’t to say the police will not do so anyway under one of the various exceptions to this constitutional prohibition (or with a warrant). However, the police cannot use your refusal to consent to a search as proof of criminal activity. There is nothing criminal about asserting your constitutional rights. As a result, it is important to know what the police can and cannot do, and to hire an attorney capable of challenging the basis for any search.

Search of a Driver

A police officer making a lawful stop of an individual may conduct a limited pat-down (“frisk”) of your body/clothing for weapons if they have a reasonable suspicion that you may be armed, even if the officer is not certain that you are armed. Terry v. Ohio, 392 U.S.1 (1968). If you have something of a criminal nature on your person (other than a weapon), it must be immediately apparent to the officer that it is contraband for them to seize it. Having said that, a frisk is not allowed during a routine traffic stop for a minor violation (e.g. improper lane change) without additional threatening or suspicious circumstances. State v. Varnado, 582 N.W.2d 886 (Minn. 1998).

If you have already been lawfully arrested, the police may search your entire person “incident to a lawful arrest.” The search is limited to the person of the arrestee as well as the area within their immediate control. Chimel v. California, 395 U.S. 752 (1969). However, this full search is only permitted in cases of custodial arrest. Meaning, the police cannot conduct a search incident to an arrest if they are simply giving you a citation for a minor traffic offense or a petty misdemeanor. Importantly, a search incident to your arrest is very extensive, and can include your wallet/purse, shoes, bag, or other places capable of concealing items.

Search of an Automobile

Similarly to a limited “frisk” of a person, during a traffic stop, the police may search the passenger compartment of your vehicle (limited to areas and containers in which a weapon may be hidden) with an articulable and objectively reasonable belief that you may be dangerous or gain immediate control of a weapon.

However, they can go further. If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, evidence of a crime, or contraband, they can search your entire vehicle (including the trunk) and any container within the vehicle that is capable of holding the object they are searching for. State v. Lester, 874 N.W.2d 768 (Minn. 2016). If, however, the police have probable cause only relative to a container in your vehicle, they may only search that container. California v. Acevedo, 500 U.S. 565 (1991). If you are arrested for a DWI, the police will likely impound your vehicle. In this case, they can complete a full inventory search of your vehicle and have a drug-detection dog conduct a sweep of it (under normal circumstances police can only conduct a dog sniff on your car with reasonable and articulable suspicion of drug related activity, so long as it does not prolong the duration of the stop).

Search of a Passenger

Similarly to the driver, the police may order any passenger out of a vehicle and conduct a limited pat down for weapons if they have reasonable suspicion you may be armed or dangerous. When conducting an automobile search, the police cannot just search a passenger by virtue of being in a car that is being searched (you are not a container). Wyoming v. Houghton, 526 U.S. 295 (1999). With regards to a passenger’s belongings, police officers with probable cause to search a car may search passenger’s belongings that are capable of concealing the object of their search that are found in the car.

If you are a passenger in a car and the driver gives police consent to search, the search should not extend to your personal items not within the control of the consenting party. State v. Frank, 650 N.W.2d 313 (Minn. Ct. App. 2002). For example, if you are a passenger and you have a bag in the trunk of the driver’s vehicle (and that driver consents to the search), because the bag is not in the driver’s control the police must seek independent consent from you to search it.

Prior to any search, you should calmly tell the police that “you do not wish to make any statements” and that “you do not consent to any search of your person or property.” This may not stop the search, but it may prevent the police suggesting you, or your tacit actions, consented in any way to a search (this could be very helpful for your attorney later on). It can be intimidating to tell a police officer “no,” but it is your absolute right under the Constitution. Under no circumstances should you interfere with the search or physically resist it: you will be arrested, and, even if the search was invalid or unconstitutional, that is not a defense to a resisting arrest, obstruction, or assault on a police officer.