# A question about cops and probable cause? **URL:** \ **Category:** Factual Questions\ **Created:** [July 26, 2008, 2:52pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841 "2008-07-26T14:52:02Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![diggleblop](https://avatars.discourse-cdn.com/v4/letter/d/ac91a4/32.png) [@diggleblop](https://boards.straightdope.com/u/diggleblop)\ **Post date:** [July 26, 2008, 2:52pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/1 "2008-07-26T14:52:02Z")
Alright, say I get pulled over and the cop asks to search my car, I say “no, get a warrant” and then he says, “oops, too late, what’s that? Step out” while pointing to a…I don’t know… a fishing lure in my change console that just happens to look like a bowl/pipe. So in other words, does having something in your car that just _looks_ illegal give him/her probably cause to search your car? Hell, you could even have a bag of oregano laying in the console (oregano looks like ground up pot for those who don’t know) for whatever reason, maybe you’re a pizza making professional and use baggies instead of the plastic bottles they come in to store your stuff… Is that probable cause or not? What are the laws on items that aren’t illegal but look illegal. I would think it does, but what do I know. Have there ever been cases on this issue? ---
**Author:** ![Joey\_P](https://avatars.discourse-cdn.com/v4/letter/j/919ad9/32.png) [@Joey\_P](https://boards.straightdope.com/u/Joey_P)\ **Post date:** [July 26, 2008, 3:09pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/2 "2008-07-26T15:09:04Z")
[QUOTE=diggleblop] What are the laws on items that aren’t illegal but look illegal. I would think it does, but what do I know. Have there ever been cases on this issue? [/QUOTE] I don’t have the answer to the real question at hand, but I can tell you that if you are purposely trying to make it look like something illegal, you’ll get in trouble as if it was the real thing. For example, that bag of oregano in your car, if a cop caught you selling dime bags of it, there going to arrest you for it. ---
**Author:** ![diggleblop](https://avatars.discourse-cdn.com/v4/letter/d/ac91a4/32.png) [@diggleblop](https://boards.straightdope.com/u/diggleblop)\ **Post date:** [July 26, 2008, 3:21pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/3 "2008-07-26T15:21:34Z")
Oh most definitely. No doubt about that. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 26, 2008, 3:26pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/4 "2008-07-26T15:26:04Z")
Probable cause for a search can be based on an objectively reasonable mistake of fact. The question therefore, is was it reasonable for the officer to believe what he saw was contraband? A subordinate question is does probable cause vanish once the officer realizes his mistake (I’m fairly sure the answer is yes). So if the officer says, “step out of the car so I can search it,” and during the patdown he finds your gun, the gun is fair game. If the pat down is uneventful, and he figures out that the contraband is not really illegal stuff, he’s probably got to stop searching. Now to make it a bit more complicated. Does he have to start his search of the vehicle with the apparent contraband or can he start in the trunk and work his way forward? ---
**Author:** ![Chimera](https://avatars.discourse-cdn.com/v4/letter/c/8e8cbc/32.png) [@Chimera](https://boards.straightdope.com/u/Chimera)\ **Post date:** [July 26, 2008, 3:27pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/5 "2008-07-26T15:27:16Z")
[QUOTE=diggleblop] So in other words, does having something in your car that just _looks_ illegal give him/her probably cause to search your car? [/QUOTE] IANAL or LEO, but; **YES**. If it LOOKS illegal, then a Law Enforcement Officer has reason to believe that it IS illegal, and now has probable cause. Be damned stupid of anyone to take it into court and try to argue that the item wasn’t illegal, it only _looked_ illegal and therefore the search was invalid. The specifics of them searching the rest of the vehicle, however, would be subject to debate. They could probably make a case for searching the rest of the vehicle or bringing in a dog, especially in the appearance of illegal drugs, which despite your pleas of it being only oregano, would probably have to be tested at a later time to be sure. In the mean time, you’re fucked. For something like a fishing lure that struck their eye as a potential pipe, however that would work, you might have a case for an illegal search if after determining that it wasn’t actually a pipe, they proceeded to tear your car apart looking for something else. ---
**Author:** ![cainxinth](https://avatars.discourse-cdn.com/v4/letter/c/7bcc69/32.png) [@cainxinth](https://boards.straightdope.com/u/cainxinth)\ **Post date:** [July 26, 2008, 3:50pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/6 "2008-07-26T15:50:36Z")
What you’re asking about is called the [motor vehicle exception](http://en.wikipedia.org/wiki/Motor_vehicle_exception), which states that an officer can search a vehicle without a warrant as long there is probable cause to believe that evidence or contraband is in the vehicle. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [July 26, 2008, 4:08pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/7 "2008-07-26T16:08:43Z")
[QUOTE=Gfactor] Now to make it a bit more complicated. Does he have to start his search of the vehicle with the apparent contraband or can he start in the trunk and work his way forward? [/QUOTE] Cop to judge or jury: I saw what looked like might be a pipe in the defendant’s ashtray, but before verifying it, I went ahead and searched the trunk without consent because the unverified object in the ashtray gave me probable cause. I don’t think that’s gonna hold water. ---
**Author:** ![diggleblop](https://avatars.discourse-cdn.com/v4/letter/d/ac91a4/32.png) [@diggleblop](https://boards.straightdope.com/u/diggleblop)\ **Post date:** [July 26, 2008, 4:17pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/8 "2008-07-26T16:17:22Z")
I guess my question was a little…well…dumb. I guess what I was getting at was asked properly by gfactor. Once the object is found out to be legal, what happens to the search then? See what initially got me thinking about it was I know someone who had tylenol in a little baggie and the cop thought it was illegal drugs. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 26, 2008, 4:19pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/9 "2008-07-26T16:19:08Z")
[QUOTE=diggleblop] I guess my question was a little…well…dumb. I guess what I was getting at was asked properly by gfactor. Once the object is found out to be legal, what happens to the search then? [/QUOTE] As I said, assuming the officer hasn’t found anything incriminating in the interim, his probable cause is gone, and the search must stop. ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [July 26, 2008, 4:21pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/10 "2008-07-26T16:21:27Z")
Of course, there is always the old “I smelled marijuana…” excuse if the cop really wants to search you. How can it be disproven? ---
**Author:** ![BrandonR](https://avatars.discourse-cdn.com/v4/letter/b/779978/32.png) [@BrandonR](https://boards.straightdope.com/u/BrandonR)\ **Post date:** [July 26, 2008, 7:18pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/11 "2008-07-26T19:18:57Z")
Mild hijack: many years ago in high school we had an officer come to our class and answer various questions. One of the things he told us about was an “easy” way of getting around a search warrant for searching a car. The basis was that the officer can technically arrest you for any driving violation (not sure if speeding is supposed to be included) and then the officer can legally do a search of the car since it’s in conjunction with the arrest. Unethical, but legal. My question is, is this all true and do officers regularly do this/get away with it? ---
**Author:** ![Joey\_P](https://avatars.discourse-cdn.com/v4/letter/j/919ad9/32.png) [@Joey\_P](https://boards.straightdope.com/u/Joey_P)\ **Post date:** [July 26, 2008, 7:22pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/12 "2008-07-26T19:22:59Z")
[QUOTE=BrandonR] Mild hijack: many years ago in high school we had an officer come to our class and answer various questions. One of the things he told us about was an “easy” way of getting around a search warrant for searching a car. The basis was that the officer can technically arrest you for any driving violation (not sure if speeding is supposed to be included) and then the officer can legally do a search of the car since it’s in conjunction with the arrest. Unethical, but legal. My question is, is this all true and do officers regularly do this/get away with it? [/QUOTE] True or not, I don’t know, but it reeks of scare tactic. (Also, if it is true, I’ll bet it depends on the state.) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 26, 2008, 7:31pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/13 "2008-07-26T19:31:42Z")
Also, you don’t need a warrant to search a car. Just probable cause. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=456&invol=798](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=456&invol=798) And a search incident to a lawful arrest is limited to the passenger compartment of a vehicle, so they can’t even search the whole car. [http://writ.lp.findlaw.com/colb/20080303.html](http://writ.lp.findlaw.com/colb/20080303.html) The strategy itself (arrest for traffic offense) has been ruled constitutional: [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-1408](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-1408) ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [July 26, 2008, 8:18pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/14 "2008-07-26T20:18:26Z")
News update: > [@](#): > > Supporters of marijuana decriminalization celebrated Thursday’s decision by the state Supreme Court restricting police from arresting passengers simply for being in a car smelling of pot. Justices were unanimous in the decision to overturn a 29-year-old precedent allowing officers to search or arrest passengers after smelling marijuana near a car. They found that simply being in a car smelling of marijuana isn’t enough to outweigh the state constitution’s robust privacy protections. > > – snip – > > The court’s decision will not bar authorities from searching a car because it smells of drugs, the court said. But justices indicated that a drug smell might be stronger evidence supporting arrest if there is only one person in a vehicle. When it comes to passengers, though, the scent of pot alone doesn’t give probable cause to arrest everyone in the car. Officers need additional evidence that each individual broke the law. Source: [Client Challenge](http://seattlepi.nwsource.com/local/371288_potsmell18.html) So it’s safer to smell like pot in Washington. ---
**Author:** ![BrandonR](https://avatars.discourse-cdn.com/v4/letter/b/779978/32.png) [@BrandonR](https://boards.straightdope.com/u/BrandonR)\ **Post date:** [July 26, 2008, 8:22pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/15 "2008-07-26T20:22:46Z")
[QUOTE=Duckster] News update: Source: [http://seattlepi.nwsource.com/local/371288\_potsmell18.html](http://seattlepi.nwsource.com/local/371288_potsmell18.html) So it’s safer to smell like pot in Washington. [/QUOTE] Mass-production of my cologne, Cannabi for Men, can now commence in at least one state! Edit: Upon searching my own joke, I found [this strange product](http://www.sephora.com/browse/product.jhtml?id=P148417)… ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [July 26, 2008, 8:34pm UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/16 "2008-07-26T20:34:07Z")
[QUOTE=BrandonR] Mild hijack: many years ago in high school we had an officer come to our class and answer various questions. One of the things he told us about was an “easy” way of getting around a search warrant for searching a car. The basis was that the officer can technically arrest you for any driving violation (not sure if speeding is supposed to be included) and then the officer can legally do a search of the car since it’s in conjunction with the arrest. Unethical, but legal. My question is, is this all true and do officers regularly do this/get away with it? [/QUOTE] I think someone got a little mixed-up - the officer can’t legally search the entire car just becasue they4 arrest someone in it. An inventory search can be done on an impounded car, but that requires at least a legitimate reason to impound the vehicle (and probably more). [http://www.accessmylibrary.com/coms2/summary\_0286-21071343\_ITM](http://www.accessmylibrary.com/coms2/summary_0286-21071343_ITM) ---
**Author:** ![Moirai](https://avatars.discourse-cdn.com/v4/letter/m/96bed5/32.png) [@Moirai](https://boards.straightdope.com/u/Moirai)\ **Post date:** [July 27, 2008, 2:59am UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/17 "2008-07-27T02:59:28Z")
[QUOTE=diggleblop] What are the laws on items that aren’t illegal but look illegal. [/QUOTE] Well, let’s just say that robbing a bank while brandishing a **fake** gun isn’t a good idea either. 😃 ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [July 27, 2008, 3:23am UTC](https://boards.straightdope.com/t/a-question-about-cops-and-probable-cause/457841/18 "2008-07-27T03:23:46Z")
In Ohio, we have a statute banning the possession of so-called counterfeit controlled substances. So if you have what looks like crack cocaine (but is really acorn meats - true story!), or marijuana (but is actually oregano) or powder cocaine (but is Similac or baby powder), under circumstances that it appears you were going to try to sell it as the real thing, then you can be busted for it (a low-level felony, IIRC). And it could certainly give rise to probable cause for a car search. When I was in law school I went on several ride-alongs with police. I was amazed and appalled to see how little the Bill of Rights meant to them as they go about their work. If they saw something suspicious they investigated and/or confiscated, knowing that most cases would never go to trial and confident that, at least in the short term, they were getting drugs and guns off the street with a little informal curbside justice. I know not all cops are like that, but I saw it happen several times. Police have enormous discretion and don’t always observe the finer points of search and seizure law.