Most misdemeanor drug cases start with a traffic stop. Many felony cases do as well. It make sense that the lawman would pull over a car for a traffic offense. What doesn’t make sense (to me, anyway) is that the majority of traffic-turned-drug stops are the result of people in the car giving consent to search. I would be a very wealthy man if I had $10 for every conversation at my office that went roughly like this:
Me: Ok. Then what happened?
Accused: The officer asked if he could search.
Me: What did you tell him?
Accused: I told them he could.
Me: Why did you tell him he could search if you thought there might be contraband in the car?
Accused: I didn’t want to look guilty.
You think politely telling the police they cannot search makes you look guilty? Know what really makes you look guilty? Standing on the side of the road in handcuffs while the police pull out 10 pounds of weed from your car. It’s not possible to look more guilty.
The idea that people don’t want to “look” guilty is actually a bit disturbing. Long before any of us were on this planet, the people responsible for founding our nation weighed in on searches by the government. You know what they said about looking guilty? Here’s what they said:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That, of course, is the text of the Fourth Amendment. The drafters of the Bill of Rights didn’t think you would look guilty for refusing a search. So, to whom do you think you look guilty? The Police? Guess what? He already thinks you’re guilty, that’s why he wants to search.
In many cases you have no ability to keep the government out of your life. In everything from how long your lawn may be to whether you may put a boat in the water without registration, you don’t really have a “right”. Unless there is a warrant, exigent circumstances, or some other exception, the Fourth Amendment says you do have a “right” when it comes to searches. Americans pitched British Tea in the harbor and then fought and died for the freedom to painstakingly draft and ratify the text of the Fourth Amendment. My experience is that people are a lot more willing to gloss that over in the face of a request from the local patrol officer.
The next part of the conversation re-enacted above has me talking to the person about their specific case, and what they should have or could have done. I can’t give out general advice over the internet to cover each specific police interaction, so don’t even think about taking my musings here as advice for what you should do in your specific situation. Doing so would be silly in light of the fact that I do fee consultations, anyway. Just call me. The best general advice I could give out is that if you ever get asked by the police if they can perform a search, it would be wise to call a lawyer for advice. Right then and there.
I will, however, say this. I have nothing illegal in my car. I have nothing illegal in my house. Plain and simple, I have nothing illegal. If the police ask me to search, though, my answer is “No”. I don’t care what they think of that.