CAN POLICE SEARCH YOU OR YOUR VEHICLE WITHOUT YOUR PERMISSION
Aug. 24, 2020
This is Dennis Boren. I’m a former felony prosecutor, but I spent most of my career as a criminal defense attorney. And today I want to talk to you about whether or not the police can search you or your vehicle without your permission.
SEARCHING YOUR PERSON
Regarding your person, the general answer to that is no, they can’t. But there are some notable exceptions. One of those is if you are being arrested on even a simple warrant, like a traffic ticket that’s unpaid and they find contraband or illegal substances on you at that time. They can use that evidence against you. It’s going to be deemed allowable.
If you’re just out in the public, they can’t walk up and search you. That’s unless they believe that you have been involved in a crime or are about to be or you have evidence of a crime on your person.
Terry versus Ohio is an old US Supreme Court case that allows this kind of search if the officer has reasonable suspicion or belief that this is the fact. And it can’t be just a hunch either. It has to be something that they can articulate.
A CURSORY PAT-DOWN
The other way they can search you is by just doing a cursory pat-down for the outer clothing. For example, the police may believe you could be involved in something. There does not have to be very strong evidence, and it could almost be just a hunch.
They are allowed to do an outer clothing pat-down to make sure you don’t have a deadly or dangerous weapon on you. Of course, that’s just for the safety for the police officers.
ABOUT SEARCHING YOUR VEHICLE
When it comes to your vehicle, the general answer to the question whether they can search without your permission is yes, but there are some notable exceptions to that.
One, it’s a strong yes if the vehicle is in plain view, i.e., if it’s sitting on a public street, a parking lot, or even in your own driveway. Anywhere a general member of the public could look into the vehicle, an officer can do the same.
And if they see evidence of a crime or possible crimes, they can search your vehicle. Under that circumstance, they are probably going to have to get a search warrant. Still, there is a vehicle exception to the search warrant standard. It’s not required under the Fourth Amendment, if the vehicle could be driven away.
Obviously, if they’re out getting a search warrant, and somebody drives away and gets rid of the evidence, then that’s not going to be a good thing. So the courts have often allowed these kinds of searches to be conducted without a warrant.
WHAT IS PROBABLE CAUSE?
Searches have to be conducted based on probable cause, whether there’s a warrant or not. Here’s what the Texas courts have ruled about what constitutes probable cause:
“It’s a combination of facts and circumstances that would lead a reasonable law enforcement officer to believe that a crime has been committed or will be committed, if the officer is in a legal position to directly observe these facts.” Again, they have to be there legally.
Now, here’s one thing I see all the time. I could give you a chapter and verse on this over and over. Let’s say, officers legally stop a vehicle. The windows are rolled down, and they say they smelled marijuana, which I’m very doubtful that they always do.
But if you’re in Colorado, smoking marijuana, and you come to Texas, and that smell is still in there, that can give rise to probable cause and a warrantless search. So the best practice is not to smoke marijuana in your vehicle ever.
I would probably personally recommend that you never smoke it at all. Even if you’re smoking it legally in Colorado or some other state that allows it. If you drive your car in Texas, the smell can certainly give rise to probable cause.
Now, as always, if you have questions about this or related subjects, reach out to me, I’ll be happy to respond to you. And I do want to remind you, that if you are involved in an interaction with a police officer, the best practice is to get out your smartphone, turn on your audio app, or better yet your video app and record what’s happening. That will protect you.