CAN A POLICE OFFICER OPEN YOUR DOOR WITHOUT PROBABLE CAUSE?

by Alex Kornfeld

Criminal LawAugust 9, 20130 comments 0 Likes

A STORY ILLUSTRATING HOW OPENING THE DOOR WITHOUT PROBABLE CAUSE MAY NOT VIOLATE YOUR RIGHTS IN SOUTH CAROLINA

It is a rare occurrence when a criminal defense attorney has the opportunity to talk to someone before one is charged with a crime.  To quote, Lt. Colonel Frank Slade, “Are you listenin’ to me, son? I’m givin’ ya pearls here.”

On July 17, 2013 the South Carolina Supreme Court held that an officer can open the door of a car at a traffic stop if the cop feels threatened in the case of Gregory McHam v. State without violating the law.  Specifically, the court held that opening the door of a vehicle during a traffic stop constitutes a search under the fourth amendment but that if a cop is opening the door because he is worried about his safety a warrant is not needed.

In the McHam case, McHam and and his passenger, Kobe Carter, were stopped at about10:50 p.m. at a safety checkpoint.  There were three officers at the checkpoint.  At the stop, the cop asked McHam to provide his driver’s license, registration, and proof of insurance.  McHam promptly provided his driver’s license but he and Carter were not able to find his registration or proof of insurance before the Cop walked to the other side of the vehicle to make sure neither party was attempting to access a weapon.  The cop stated once he got to the other side of the vehicle he could not see the passengers hands because it was dark and there wasn’t much light so for his safety he opened the door to see what they were doing.  As soon as he opened the door, he saw a bag of crack between the seat and the passenger door.

Here are your pearls.  When stopped at a checkpoint or otherwise lawfully pulled over it is in your best interest to have your license, registration, and proof of insurance readily accessible. If a cop convinces a court that he opened your door at a search because he was concerned about his safety the court may find that opening the door falls within an exception to the warrant requirement.

Some have commented on the veracity of the cop’s statement that he opened the door for his safety.  Some have stated the cop’s real intention was to violate McHam’s 4^th amendment rights.  It’s easy to speculate about what happened at the checkpoint but the South Carolina Supreme Court has spoken and stated this was a warrantless search but that the cop legally opened the car door under an exception to the rule.  The exception in this case hinged on whether the cops claim that he opened the door for safety reasons was reasonable in the particular case. Here, the Court held the cops safety was a legitimate concern and thus reasonable because McHam and Carter were looking for registration or insurance papers in places they would not normally be kept, the cop could not see either parties hands, the area was dimly-lit, there was more than one occupant in the vehicle, and the fact that only one cop approached the vehicle.

Keep your doors locked. Have your license, registration, and proof of insurance readily available and obviously don’t drive around with illegal substances in your car.

Alex Kornfeld is a Criminal Defense Lawyer in Greenville, SC. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Atty. Kornfeld at his office 864-335-9990