Thursday, November 3, 2011

Police: Can I search your car?

Last year, over 1 million American drivers gave their permission to law enforcement officers to search their vehicles during routine traffic stops. In the future, if you are pulled over for speeding or a similar traffic offense you may be asked by the officer, "Can I search your car?" If that happens, it should be no great mystery to you why the officer is asking to search your vehicle. I can tell you...the officer is not trying to determine if you use the newest seabreeze air freshner, nor is he interested in determining if you still have that Vanilla Ice CD from the early 90's. No....The officer is actively looking for contraband in YOUR vehicle. Think twice before you consent to a search. The officer has just invoked your most sacred of constitutional rights. Under the 4th Amendment to the US Constittution, all Americans are protected from unreasonable searches and seizures. In application, that means an officer cannot search your vehicle without a warrant unless he has, either: 1) your permission to do so, or 2) "probable cause" to believe that you have committed some type of crimal offense. Generally speaking, "probable cause" means that the officer is reasonably suspicious that you have committed a crime. For example, an officer would have probable cause to search your vehicle if he pulled you over and smelled marijuana coming from your vehicle. Likewise, suppose an officer receives a BOLO (be on the look out) that a person has just robbed a downtown bank and is heading north, driving a green 1993 Geo Metro and was last seen wearing a red t-shirt. Soon after, an officer pulls you over just north of town in your green Geo Metro while you are wearing your favorite red shirt. guessed it. The officer has probable cause to search your vehicle. Instead of those instances, the remainder of this article focuses on situations where the officer does NOT have probable cause or a warrant to search your vehicle. In those cases, the officer must obtain your permission in order for him to search your vehicle.

As a criminal defenses lawyer, I often ask my clients that have been charged with possessing contraband in their vehicles, "Why did you consent to the officer searching your car?" Here are the most common responses: 1) I didn't know that I could refuse. 2) I was intimidated by the officer. 3) (my personal favorite) I didn't think they would find it. First and foremost, please know that you have a constitutional right to refuse to allow an officer to search your vehicle if he asks to do so. If the officer is asking to search your car, it is likely because he does not have probable cause to conduct the search (otherwise, he would already be searching your vehicle without your permission as explained above). Instead, for some reason or another, the officer has a "hunch" that there may be contraband in your vehicle. It may be that you are wearing a "Bob Marley t-shirt" or it maybe your bumber sticker that says, "Legalize Marijuana". Whatever the reason, when the officer asks to search your vehicle politely and calmly inform him that you are refusing the search. Second, although it is easier said than done, do not be intimidated by the officer. Police officers, just like the rest of us, have to follow "The Rules" (in this situation, "The Rules" being the US Constitution). If you refuse the search, the officer SHOULD follow the rules and not search your vehicle unless he has probable cause or a warrant. Finally, do not be so naive to think that if you give the officer permission to search your vehicle that he will not find the contraband hidden in your car. Police officers are trained extensively in looking for and locating contraband in the most unusual of places. Do not test their training.

At this point you may be thinking, "This is great, all I have to do is say "NO' to the officer's request and I can drive away as if nothing happened." Not exactly. Although that may be the case in some situations, your refusal to the search, may elevate the officer's suspicion that you are trying to conceal something. If are acting nervous and fidgety, combined with your refusal to the search, this may give the officer probable cause to search your vehicle without your permission. In other cases, the officer may detain you for a period of time while a drug sniffing dog is called to the scene or while the police seek a search warrant. In either instance, there are limits as to how long the police can detain you before they have to let you go.

In closing, if you know that there is contraband in your vehicle than do not consent to the search of your vehicle. The police will find it. You are better off refusing the search and forcing the police to follow "The Rules". If the police fail to follow "The Rules", your attorney will likely have a number of defenses that he can raise on your behalf, including, attempting to get the arrest thrown out of court, ie. suppressed, for violation of your 4th Amendment rights. On the flip side, if you know that there is absolutely no contraband in your vehicle you can consent to the search or you can exercise your constitutional rights and refuse the search. Either way, now you know "The Rules".