Developing Probable Cause to Search a Car Without a Warrant

This post is offered as a discussion topic only and does not represent legal advice. Officers must refer to the laws in their own State as well as their agency's policies, which can be more restrictive on officers than the law requires.

Scenario:  Patrol officers and detectives from an agency's gang suppression unit respond to call that a group of young men are filming a music video in a parking lot and one of them, who's described as thin, wearing all black and approximately 17 years old, is waiving a gun around. This is a known gang area in your city.

When the officer arrives, a person matching the description of the person with the gun runs. Detectives catch him and locate a firearm on his person. Subsequently the detectives decide to detain everyone on scene. One adult male named Mosely, is handcuffed, patted down for weapons, then detained inside the front passenger compartment of a patrol vehicle. Detectives ask Mosely twice for consent to search his vehicle but he declines. Detectives search it anyway and locate a firearm in his car, leading to his arrest.   During the motion to supress hearing, the the detectives cite five reasons why they believed they could search the vehicle:

1) The detectives in the gang suppression unit are experts in gang activity and know them to be frequently armed.

2) They know Mosely is an active gang member.

3) The detectives know that gang members frequently use guns in their videos.

4) They know gang members frequently hide guns in their cars. And

5) The detectives know about Mosely's extensive criminal history.

What do you think? Are those five reasons going to be enough to convince the court that they had probable cause to search Mosely's car without a warrant?

Answer: Here's what the California Court of Appeals had to say about these circumstances in the 2024 case Mosely v. Superior Court of Sacramento County: "The People have a lot to say about what (the detectives) knew about (Mosely), and relatively little to say about their reasons for believing evidence of crime or contraband might be found in the car. Their argument, so far as the car is concerned, boils down to the following: (Mosely) admitted to driving to the apartment complex in the car, gang members frequently hide firearms in cars, and petitioner could have had time to hide a firearm in his car before detectives arrived on scene. This argument fails."

Here's why it fails. They said, "A finding of probable cause must be supported by objective facts known to the officer at the time of the search... The record does not disclose objective facts, known to (the detectives) at the time, which led them to reasonably believe evidence of a crime or contraband would likely be found in the car. There was, for example, no evidence anyone saw (Mosely) place anything in the car. Nor was there any evidence anyone saw him standing near the car or moving towards the car or away from it. That petitioner was standing within 20 feet of a parked car in a parking lot does not, without more, raise an inference that evidence of crime or contraband might be found in the car." "The People rely on (the detective's) beliefs...(but) they are no substitute for objective facts supporting an inference that evidence of crime may be found in a particular place."

Its not uncommon for officers to use subjective factors to explain their actions, in fact it happens quite frequently in use of force cases. And that's exactly what happened here in this search of the vehicle. Its important to remember that the 4th Amendment to the United States Constitution protects citizens from unreasonable searches of their property by the government. And even known gang members are afforded those protections if they're aren't on probation or parole. In order for officers to overcome this and invoke the automobile exception to the requirement to get a warrant, they must have probable cause to support a fair probability that evidence or contraband will be found in the car. That probable cause must be built on facts only and not based on opinion or personal feelings.

This entire case is available in the additional resources of your TheBriefingRoom.com Subscription and always remember to refer to your agency policy which can be more restrictive on officers than the law requires.

This blog topic serves as a summary of our video lesson on this crucial topic. If you're interested in accessing the full video lesson and additional resources, click the link to register for your free 30-day trial.