During a routine traffic stop officer suspects driver is hiding drugs in car and asks for consent to search the car. Consent is granted and during the search a small amount of drug paraphernalia is found in the car. After finding the paraphernalia officer approaches the driver standing near his patrol car and orders her to empty her pockets. The driver is not under arrest at this point. Of course, drugs are found in her pockets. She is then questioned briefly about the drugs and placed under arrest. Question: Does the automobile exception to the warrant requirement apply to the search of the person of the driver? Since she wasn't under arrest when the drugs were found I don't see how I can justify the search of her pockets under search incident to arrest. Is there any other exception I'm overlooking?
Not exactly, but you don't need the automobile exception here since you had consent to search the car. That doesn't "automatically" give you probable cause to search the passenger, but finding paraphernalia in the car is going to be good enough to give you probable cause to search the passenger.
This case clarifies a lot:
Foster v. State, 101 S.W.3d 490, 2002 Tex. App. LEXIS 8267 (Tex. App. Houston 1st Dist. 2002)
And it shows that you can use PC or the automobile exception in these kinds of facts to search the passenger.
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