By Hoda Soliman and Tara K. Walsh
No one wants to be pulled over by the police. When those flashing lights appear in your rearview mirror, and you come to a stop on the side of the road, you may be flustered or confused, scared or nervous. You probably want this ordeal to be over as soon as possible, too. So, you act polite and calm, as you should, and when the officer comes to your window to ask for your license and registration, you willingly hand them over. But then they ask if they can search your vehicle. Not wanting to cause trouble and hoping to be on your way ASAP, you say “yes.”
Wrong answer – most of the time.
When you give your consent to a search of your vehicle, you are also voluntarily giving up rights that could be the key to your defense if you subsequently face criminal charges arising from the stop. Unfortunately, most people don’t understand and fail to exercise their rights when it comes to vehicle searches. As much as it may be tempting to just pop the trunk open or let an officer muck about your glove compartment so you can be on your way, here is why you should, respectfully and politely, decline to give your consent when police ask to search your vehicle.
A Traffic Stop Is Not a Blank Check for a Vehicle Search
Under the Fourth Amendment to the U.S. Constitution, you are protected from unreasonable searches and seizures by the police. This includes a search of your vehicle, and without more, a traffic stop alone does not provide a reasonable basis for such a search.
Generally, a police officer may only search your car in one of these circumstances:
- The officer has a valid search warrant.
- The officer has probable cause to believe there are illegal goods or substances in the vehicle, such as seeing a weapon, drugs, or open containers of alcohol in plain sight.
- You are being arrested, and the police are impounding the car.
- You consent to the search.
One note regarding cannabis. While the smell of marijuana (burnt or raw) alone used to provide probable cause for a vehicle search, that is no longer the case. There would need to be accompanying exigent circumstances or other articulable factors the police could point to that would demonstrate evidence of a crime. Even if smoked marijuana was detected along with observations of a driver being under the influence, the search would only extend to the passenger compartment of the vehicle, not the trunk.
If none of these circumstances are present and the police search your car anyway, a judge will likely throw out any evidence of criminal activity obtained during the search if criminal charges are brought against you. Sadly, too many people give their consent to a search and, in the process, give up their ability to have such evidence suppressed and their case dismissed.
Consenting to a Search = Consenting to the Admissibility of Evidence
As noted, many, if not most, people automatically consent to a search of their car at a traffic stop, because they don’t think they can say no or because they feel pressured or intimidated by the officer requesting the search. They also may think that refusing consent may make them look guilty or get them in further trouble. Don’t fall into this trap. You should always be able to exercise your Fourth Amendment rights by respectfully refusing to give consent to a vehicle search.
Whether a vehicle search was lawful and constitutional is often a key issue in a criminal prosecution, particularly in drug possession cases. But if you consent to a search, anything found in your vehicle (and your consent allows police to search your entire car) can and will be used against you. Your lawyer, no matter how skilled, will have a hard time having evidence suppressed if you gave the police a thumbs-up to look around. By not consenting to a vehicle search, you give yourself a much better chance of overcoming any charges arising from the search.
All of that said, there are rare occasions where consent may be the better call and the path of least resistance. For example, if you know there is nothing illegal in the car, a consent to search moves the process along and can get you on your way quicker. Additionally, if the officer is determined to search your vehicle, rightly or wrongly, declining their request could result in the police seizing the vehicle and applying for a search warrant. This could be a several day or weeks-long inconvenience.
If you have any questions or concerns about having consented to a vehicle search, or if you are facing criminal charges in New Jersey, please contact Hoda Soliman or Tara Walsh at Ansell.Law.