Free Initial Consultation
Your Rights When Police Search Your Car
24 Jun 2016

Your Rights When Police Search Your Car


Did the police stop your car, search it, take something from it, and charge you with a crime based on what they took?  Your Albuquerque and Santa Fe criminal defense lawyer will want to investigate the circumstances of that stop and search carefully.  If it was not done in compliance with the U.S. and New Mexico Constitutions, it may be possible to keep the evidence from being used against you.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. The Fourth Amendment also requires search warrants to particularly describe the place to be searched.  Moreover, the New Mexico Supreme Court has held that the Constitution of New Mexico may grant a broader range of protection against warrantless searches than that provided under the Fourth Amendment to the United States Constitution.

Despite the Fourth Amendment, the police have relatively broad powers to search motor vehicles. However, the authority of the police to search and seize evidence from a motor vehicle does have limits.


The first step in suppressing evidence seized during the stop of a motor vehicle is to examine the stop. Suppressing evidence means the evidence cannot be used.   Stops are typically initiated in one of two ways. The most common is a traffic stop. The second common method is when a vehicle is stopped at a traffic checkpoint.

Traffic checkpoints must be planned in advance, and a systematic method for checking the vehicles must be in place.  The police may check every car or have a predetermined ratio of how many cars will be checked. For example, the police may determine they will check every third car. The police cannot randomly stop a car that does not fit the predetermined ratio.  Also, the checkpoints must not be designed in such a manner as to target a particular racial or ethnic population.

If the checkpoint does not meet the legal requirements, then any evidence seized or gathered at the checkpoint can be suppressed.


The second type of encounter is a traffic stop. Before the police make a traffic stop, they must have reasonable suspicion that a crime was committed.  Reasonable suspicion means that a police officer observed evidence or behavior that would lead a reasonable police officer to believe a crime was committed. The car was speeding, crossed the center line or did not have a license plate are examples of reasonable suspicion.

If the police make an invalid stop, evidence gathered at the stop can be suppressed. Suppose that a police officer stops a car because he sees a young dark skinned male driving the car.  The officer can cite no reason for the stop; he just did it.  When he approaches the car, the police officer smells marijuana and sees a plastic bag with a substance that appears to be marijuana. Since the stop is invalid, the evidence found in the car can be suppressed by an attorney. However, if the police officer had a reasonable suspicion to stop the car, he can conduct a legal search if he finds evidence of a crime.


When the police have a reasonable suspicion that a weapon is within the immediate access of an occupant of the vehicle, the police can search the vehicle for the weapon.  The purpose is police safety.  However, unless an arrest is made, the search must be limited to those areas that reasonably could be used to hide a weapon.  Evidence that is found during a legitimate search for weapons can be used as evidence against the vehicle’s occupants.

Assume the police made a valid stop and saw a weapon in the back seat of the car.  The police can use the presence of the weapon as a reason to search for other weapons.  This is called a Terry search.  A Terry search can be based on any reasonable suspicion that a weapon is present. The justification for the Terry search is not to find illegal evidence, but to protect the officer.  Therefore, the police can search in the glove compartment, under the car seat and in the console.  However, the search can not extend to areas where the vehicle’s occupants do not have immediate access. For example, a police search of the car’s trunk would likely be held improper because the vehicle’s occupants do not have immediate access to the trunk. Therefore, weapons stored in the trunk are not an immediate threat to a police officer’s safety.

A police officer can also order the driver and the passengers out of a car. Under the Terry rule, the police can perform a pat-down search when they have a reasonable suspicion that weapons are present. An officer can detect a weapon by feel and remove it from the person being searched. However, the police cannot pull an object from a person’s pocket if it is not a weapon. For example, if the officer feels a baggie, he must leave it alone.


What constitutes a proper search of a motor vehicle is a complex issue. The problem is particularly involved in New Mexico for two reasons. As previously mentioned, the New Mexico Supreme Court has held that Article Two of New Mexico’s Constitution may grant broader rights of privacy than the Fourth Amendment. Moreover, New Mexico’s proximity to the Mexican border complicates matters. Currently, the border patrol is permitted to establish traffic checkpoints a lengthy distance away from the border.  However, this does not mean the border patrol can stop a car just because a Hispanic person is present in the car.


If a police officer requests permission to search your vehicle, you do have the right to say no. The police may proceed with a search regardless. However, if the police lacked legal standing to search the car and you grant permission, then the search is legal. If you withhold permission, it is possible the search can be ruled improper.


You need an attorney to protect your rights. Ray Twohig is an experienced, aggressive, and capable attorney. He will listen to what you have to say, investigate the facts of the case and fight to keep evidence out of court that was gathered improperly.

To speak with Albuquerque and Santa Fe criminal defense lawyer Ray Twohig, call the Twohig Law Firm at 505.898.0400.



  • I have been in the legal field for almost 41 years. I work with lawyers as a consultant all over the US. Ray Twohig is the best of the best. He is very thoughtful, thorough, careful, and... Twohig Law Firm Twohig Law Firm

    - Elliott Oppenheim, MD,JD,LLM Health Law READ MORE


Helping You Fight Theft Charges…

Theft of any type is a serious crime in New... ( read more )

How to Protect Yourself Against False Allegations…

Domestic violence is a real threat, and there's a reason... ( read more )