Often times a police officer will ask someone who they have stopped to issue a traffic citation to if the officer can search their car. It surprises me sometimes how often a person consents to allowing the officer to search when the officer has no grounds to do so and when the person has drugs or something illegal in their car!
Generally the only time an officer can search a person’s car without consent is if they have probable cause to believe that the car contains drugs or contraband or if an individual in the car is arrested and the car is searched “incident to that arrest.” I think most of the time people who consent to their car being searched knowing that there are drugs or contraband in the car do so because they believe if they didn’t consent the officer will search it anyway. This is not true. In the situation where the officer can search pursuant to probable cause, there must be some indication that drugs or contraband are in the car, e.g. they smell marijuana or drugs or contraband is in plain or open view. “Plain view” means that the drugs or contraband must be visible from the position the officer is in outside of the vehicle.
So what do you do if an officer asks you for consent to search your car? The best thing to do is to politely refuse. You may want to say something like this, “Officer, I know you are only doing your job, but a friend of mine who is a lawyer told me that I don’t have to give consent and I don’t really want to be inconvenienced by staying here while you search through my car, so I respectfully decline,” or, more simply, “No sir, I don’t give consent. Now may I be on my way?” The officer may be disgruntled or upset about not allowing him to search your car but so be it. The officer, if he or she is finished writing you a citation cannot legally keep you at the scene of the stop any longer. It is better to be on your way than to be held up by an officer going on a fishing expedition inside your vehicle and probably calling a canine unit to perform a dog sniff on the interior or your car as well. Although you may not have any drugs or contraband in your car and you don’t think anyone who has been a passenger ever has had drugs if the prior owner used drugs or if a passenger unbeknownst to you has had drugs in their possession, something could be found or a drug sniffing dog could alert.
You may also decline to consent to a search of your car if they have arrested someone who occupies your car and they have been placed in back of the squad car. Since a U.S. Supreme Court decision in 2009 if an individual who has been arrested is not in the immediate area of the car, e.g. in the back of a squad car, the officer no longer has legal authority to search the interior of the car “incident to the arrest.” In order for the officer to have the legal authority to search the interior of the car the arrested individual must be unsecured, e.g. not in handcuffs, and within reach of the passenger compartment at the time of the search; or when circumstances make it reasonable to believe that evidence of the offense for which the person is arrested might be found in the vehicle. (Smell of marijuana or they see something illegal from outside the car). The officer does have the authority to conduct a warrantless personal search of an arrested individual and the area within that individual’s immediate control. Even if you’re the individual who has been arrested and placed in the back of the squad car, you do not need to give consent to search your vehicle and the officer – under most circumstances – does not have a right to search it without consent or permission.
Again, the majority of drug cases that come into our office where law enforcement has found drugs in a vehicle involves the driver of the car giving consent to do so. (Two other common circumstances involve the officer allegedly smelling marijuana or when a drug dog alerts on the car. (Dog sniffs will be the subject of another blog soon).
If you find yourself in the position of having been arrested for drugs or contraband during a traffic stop, you should contact an attorney as soon as possible. Even when you’ve been polite and have done everything correctly, you may find yourself in this position. Refusing to consent to a search is not a guarantee that the officer will respect your wishes but it will provide a legitimate, legal defense that may result in any evidence seized being suppressed. An experienced attorney is the best person to represent you in these scary times.
1) If an officer asks to search your vehicle, politely but firmly refuse to consent to a search.
2) Even if you are arrested, politely but firmly refuse to consent to a search.
3) In most cases, it’s best to not talk to officers.
4) Be polite and respectful at all times. (Much of what you say or do is being recorded).
5) Best to call an experienced Criminal defense attorney as soon as possible.
Please call us at The Jenkins Law Firm if we can be of service.