You get stopped in your car by a cop, and he asks permission to search... what now?

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Before you automatically say "refuse to give consent!", hear me out on this:

I was watching "Never Get Busted Again" and found it interesting that he said "you hear time and time again, when a cop asks you if he can search your vehicle, refuse refuse refuse. That's not what I recommend."

He recommended taking the time and effort to hide things in hard-to-get-to locations, and said that you should give the officer consent to search because he will almost always do a very basic search of the most obvious and easy-to-reach spots (glove compartments, ash trays, center console, under seats, in the trunk, spare tire wheel well, any bags/containers in the car, etc). Make it hard to get to and its more likely he won't put the effort into exploring that area and will send you on your way.

He said that on the other hand, if you refuse consent, this is the biggest red flag to the officer that you have something to hide. The officer will assume you have contraband and will find a way to get into your car. He will likely call in a K9 unit and many other officers to the scene. The dogs can always be made to "alert" to the presence of contraband regardless of whether they actually smell it. Once they do, the police have all probable cause they need to spend as long as they want, tearing your car apart.

Of course, if you give consent to search you are giving consent for the officer to search every single square inch of your vehicle, taking as long as he/she wants. However, it is possible that consenting (provided you keep your cool and don't seem nervous) will make you less suspicious, giving the officer less motivation to do a long, thorough search.

Have any of you guys (or someone you know) been in a situation where you've had to make this decision? What choice did you make, and what happened?

 

What section do you suggest?

It's not about legalization so it doesn't belong in the law section.

However, I do ask for people's experiences with this decision, so it does fit the description of this section, which says, "please share your vast knowledge of the herb and discuss your adventures with Mary Jane".

 

I can tell you with 100% certainty that this is *not* the case. The weapons pat-down is known as a "Terry stop" or a "stop-and-frisk". How it works is: if police have "reasonable suspicion" that someone has a weapon, they can pat them down to check for one (the power to do that search comes from the Supreme Court case Terry v. Ohio, see http://en.wikipedia.org/wiki/Terry_v._Ohio).

Note two things: first, "reasonable suspicion" is an easier standard to prove than "probable cause". There are cases which have even held that it was "reasonable suspicion" to be a white guy in an all-black neighborhood, and vice versa. Second, even though Terry style stop-and-frisks are meant to check for weapons, anything else illegal that the police find during that stop can be confiscated. I have read many, many decisions based on Terry-stop pat-downs where drugs were found incidentally to the weapons search, and the person was charged with possession.

Example: Officer approaches some youths standing on a street corner at night. As he approaches he sees one of the youths quickly stuff something into his pocket. This isn't "probable cause" that a crime is being committed, but it is "reasonable suspicion" -- the youth might've been hiding a weapon -- and so the officer can do a Terry stop-and-frisk. The officer pats down the youth, and while he is doing so he feels a baggy that "in light of the officer's experience, feels like marijuana"(this is usually the language they use, though I disagree that marijuana necessarily has an "obvious" feel). He reaches in the pocket and pulls out marijuana. This results in an open-and-shut possession case. This scenario happens hundreds, if not thousands of times, every single day across America.

Other cases have given the police the right to "stop and frisk" your vehicle -- meaning that if they have reasonable suspicion for a weapon, they can pat-down the occupants of the vehicle, AND they can inspect the passenger area of the vehicle.

If the drugs are on your person or within your "constructive possession" (example: somewhere in the car you are driving, see http://en.wikipedia.org/wiki/Constructive_possession), denying that they are yours is meaningless. They will be assumed to be yours.

 

I think the hope is that the police will make a big procedural mistake, and that your attorney will be able to have the evidence suppressed as the product of an illegal search. This does happen sometimes but it is rare.

The question you have to ask yourself is, is it worth taking that chance? If you choose to fight it, you will still (1) be arrested and jailed until you bond out, and (2) have to either spend several thousand on a lawyer or take your chances with an over-worked Public Defender.

In my opinion, refusing consent then "fighting the case" is only a realistic option if you are facing felony charges or if your attorney notices a REALLY big mistake the police made that can turn your case around. Otherwise you will probably do better by taking a plea. In many places, first-time misdemeanor possession charges can be avoided by going through a pre-trial diversion program (you agree to be drug tested for a period of time, usually 6 months to a year, and go to outpatient rehab classes). If you complete the program successfully then the charges are dropped. If no pre-trial diversion program is available, you will probably not serve a jail sentence if it is your first offense.

There is always a risk and a burden (in both time and money) in fighting a case. Weigh that risk against the punishment you're likely to face, and make a decision.

 

That's if the police have dash cameras where you live. Not all police departments have them or use them. In that situation it is your word against the police officer's.