Can you respond something like “I believe that is an invented pretext officer. I and my friends have been pulled over a number of times on that pretext and no marijuana has ever been found. As such I believe it to be a ploy. Am I free to go?”
Now, if the officer insists, one should accede to the search - the place to argue being in court - but could you then go to court and prosecute the police for something? Is inventing a pretext for pulling over a vehicle actually illegal?
I’m not sure that applies here. If the officer smells MJ he doesn’t need the dog to confirm that. Smelling pot should be (IANAL, so I’m going to assume it is) enough probably cause for some type of search.
In general, it’s rarely productive to challenge the cop at the time of the stop. You can do so afterwards in a much less confrontational environment.
If an officer has probable cause, he or she doesn’t need your consent. If you dispute his probable cause, you’re going to have to tell it to the judge.
You don’t have to give a reason for why you decline to let the officer search. You just say, “No, I don’t consent. Am I free to go?”
Now, if the officer says, “No, you’re not free to go.” then you’re under arrest. But he can’t arrest you for no reason, or rather, when you go to court if he didn’t have a good reason for arresting you then his case is going to fall apart.
In other words, if the cop has a good reason (as defined by law) to search your vehicle, he can do so without your permission. And if he doesn’t have a good reason, then he can’t do so without your permission, and you have no obligation to give him permission. Except people–even people with drugs or weapons or dead hookers in the car–very often for some reason give the cops permission to search. You don’t need to give a reason for why you refuse to consent to a search. Of course, if the cops search your car without your consent all you should do is make it clear that you don’t consent to the search, and then shut up.
Let’s be clear what the situation is, since the answer depends upon the situation.
IF the officer asks your permission to search your car, you do not need to grant the officer permission, nor do you have to give any reason for not allowing the search. Politely say, “I’m sorry, sir, but no.”
IF the officer is not asking if you will permit a search, but is instead informing you that a search will take place, will-ye, nil-ye, then there is nothing to say at that point. If the search turns out to be unconstitutional, then any evidence obtained during the search most likely will be inadmissible in any criminal case pursued by the state against you or your passengers. This, in most cases, is the extent of your “remedy” for having had your constitutional rights violated by the officer. It might be the case that your jurisdiction would allow a civil suit for violation of your civil rights; you would need to check into that and it’s something that varies substantially from state to state.
So, in short answer to your question, you should not argue, or even discuss the issue with the officer in a way similar to that posed by your post. If asked, politely refuse, and see if the officer thinks he has sufficient grounds to search regardless (they will often ask anyway, just to insulate their action with your permission). If told, simply comply quietly.
You can respond however you like. The answer will be that you are not free to go until he’s done. If a search turns up pot or other contraband or evidence of a crime, you can argue in court about whether it is admissible. Your opinion about whether the cop was sincere will not be relevant.
Not a traffic stop, but several years ago two uniformed officers came to my home about a car that my wife (at the time) had given to a girlfriend, w/o notifying the state of the change in ownership. I invited them in and offered them coffee. I told them all I knew about the car. On of the officers then went into this spiel about have been through drug task force
and then informed me that he believed he smelled marijuana and ask me if I was growing, or using it. I was furious and told them that the invitation to enter my home had expired, asking them to leave. They did so, w/ a few parting words. So I’m not sure an officer smelling pot is sufficient to establish probable cause for a search w/o some substantiating evidence. When my wife talked to them later, their first question was about smelling pot in my house. These guys seemed pretty convinced, so I’m pretty sure they would have searched if they believed they could have.
Gotta ask… WERE you growing or using it? Just curious if they were making it up entirely or if you really (hypothetically of course) may have had some around.
I am my fellow readers would love to know. =)
(yeesh, that just sounds bad. At the very least the POLITENESS police will be called.)
Wait, wait, I’m missing something- what makes a search constitutional?
It almost sounds like you guys are saying that the best way to make a search constitutional is to find something during the search. It also sounds like there’s no penalty to an officer for violating an innocent person’s rights, but if the searched person is guilty of something then they can give the officer trouble.
No, I had just made coffee and I suspect that’s what he smelled. I can think of no reason why he might have thought I was a druggie, other than an overactive imagination. It was extremely offensive. I have no respect for our local police, due to that and several other incidents.
