What to do when police ask to search your car

Like anyone doing their job, law enforcement officers should be treated with kindness and courtesy. They put their lives on the line every day in the name of public safety. The role police officers play in our society deserves a high degree of respect.

However federal and state law enforcement officers, which include Pensacola Police Officers, Escambia Sheriff’s Deputies, and other law enforcement officials operate under certain limitations enshrined in the U.S. Constitution’s 4th amendment protections, other federal and state laws and court cases interpreting those laws of how they can search your person and your property — and that includes your car!

Fourth Amendment Protections Applies to Your Car

The most common place most citizens will unexpectedly interact with law enforcement officials is during a routine traffic stop, oftentimes after being stopped for speeding or for a mechanical/safety issue while driving their car. When we are stopped in our cars for a traffic stop we are “seized” for 4th Amendment purposes and all of our 4th Amendment rights against unreasonable search and seizures apply.

Best Practices for Dealing with Officers

One thing you can do to ensure such an interaction goes smoothly as possible is to be able to readily locate your driver’s license, insurance card and car registration. It’s a great idea to have your insurance card and your car registration together and know where they are in your car.  Have them and your driver’s license in your hand when the officer gets to your window of your car if possible. Having to search “all over” for them inside your car gets you off to a bad start with the officer – is the driver confused, impaired, under the influence? You get what I mean.

If you can’t locate your registration or insurance card, the officer has the authority to issue you a separate traffic ticket just for not having those documents in your car which will require you to do some leg work and expose you to possible additional monetary costs at the very least. These types of traffic tickets are not “criminal citations” – in other words – you can’t go to jail but you can pay hefty fines and have your driver’s license suspended if you don’t comply.

In most cases, when the required documentation is forthcoming, the officer will simply speak with the driver, issue an appropriate citation and be on his/her way.

Consenting to Search, Traffic Citations and Canine Searches

However, often an officer without any probable cause or suspicion to search your car may simply ask the driver for permission or “consent” to search the vehicle. They may often announce to the driver and the car’s occupants, “You all don’t have anything in there that would get you in trouble do you?”

The officer who does this is banking on a couple things:  Most people are nervous and don’t think they can refuse to consent to search and will allow the search even though they have drugs or contraband in the car, or, the driver or passenger will be so nervous they’ll just volunteer, “well, yea, officer, I have just little bit of weed on me,” etc. Many people think the cop will search my anyway so why not – I’ll look guilty if I don’t.

Please note that only the driver of the car can give consent to search the interior of the car.

What most of us don’t understand is as citizens we have the right to refuse to voluntarily or consent to allow the officer to search the vehicle. If the officer has no “probable cause” to search the car he must let us drive on and they often do.  They may not like and get angry it but they have to under Florida law and the Federal and Florida constitutions that are designed to protect us from unreasonable search and seizures.

Caveat:  If the police officer has a strong suspicion that something illegal is going on in the vehicle – say, he smells marijuana, believes the driver is under the influence, or sees what he believes is a weapon – he has “probable cause” to search the car, have everyone exit the car and search the car without the driver’s consent.  There are always certain rare exceptions.

How Long Can the Officer Writing the Citation Hold the Car at the Roadside Until the Canine Unit Arrives and Sniffs the Outside of the Car?

Another common scenario is the officer may stop a car that makes the officer believe that the driver, its occupants or even the way the car itself or its occupants look, may possess drugs, and let’s say the car was speeding, but the officer has no legal probable cause to search the car.

He may call a K-9 (canine) unit with a narcotics dog trained to sniff the outside of a car and if that dog “alerts” it gives the cops probable cause to search the interior of the car for drugs. (We’ll write another blog about “dog sniffs” soon). The officer who stopped the car can only hold the “seized” car at the scene the length of time it takes for the officer to write the citation for speeding. When a reasonable length of time it takes for the officer to write a citation, in this case for speeding, ends for purposes of the 4th Amendment your “seizure” is over and you are free to go.  If the drug sniffing dog isn’t there yet it doesn’t matter. The officer can’t hold you without probable cause.

In one case in South Florida it took the officer 12 minutes to write the citation but he held the driver on the roadside a total of 29 minutes until the drug sniffing dog arrived. The Court found the delay between the time between when the citation should have been given to the driver and the drug dog arrived and “alerted” to outside of the car to be excessive and suppressed the evidence. In this case a trafficking amount of cocaine.  In Florida when the issuance of a traffic citation was the purpose of the traffic stop and a reasonable time has passed to complete the citation, the right to continue to delay the motorist for the purpose of a dog sniff expires.  If interested in learning more about how long an officer can hold you after writing a citation see Whitfield v. State, 33 So. 3d 787 (5th DCA 2010).

How long an officer may hold you during a traffic stop when he doesn’t have consent to search, or probable cause of his own to search like the smell of marijuana, combines a variety of factors that must be evaluated factually on a case by case basis.

If you were stopped for a traffic infraction, held on the side of the road until a canine arrived and drugs or contraband was found in the car, containers in the car, or in trunk, you really need the help of an experienced attorney to help effect the best possible outcome in your case.

Simple Take-Aways

The best advice we can give here is to:

  • Be courteous to the officer always no matter what the officer’s attitude might be
  • Have all your required documents immediately available to give to the officer
  • Do not engage in small talk with the officer (this gives them more time to get the canine to the scene of the stop)
  • Do NOT consent to the search of your car
  • Although you’re nervous, try to keep track of the time between when the officer stops you, when other officers arrives and when a K9 officer arrives and the dog begins sniffing the outside of the car. All times when officers arrive at a scene are recorded through dispatch so there is a permanent record of length of time you were detained.
  • If the officer hands you the citation, ask him or her politely am I free to leave now? Please do not determine on your own what’s a reasonable time for the officer to have written you a citation. Let your lawyer and the Court figure that out.

If you believe your 4th amendment rights against unreasonable search and seizure have been violated by an arrest in Pensacola, Escambia County, Gulf Breeze, Santa Rosa County, Destin, Santa Rosa Beach, Sandestin, Florida please give me, Jim Jenkins, a call and I’ll be happy to help you any way possible.