That’s pretty much the question. If I am stopped for some legitimate reason (speeding, busted tail light, whatever) and the officer asks for permission to search my vehicle, my first instinct is to decline. However, is my day now ruined while I sit by the side of the road with a pissed off cop?
Assume that there is no observable reason to conduct a search. I do not have a gun or other weapon sitting in plain view. I do not behave in a way to cause the officer to be concerned for his safety. I am polite and respectful in every way and do not argue about the cause for the stop. When asked for the consent, I politely say “Officer, I do not give consent for you or anyone else to search my vehicle at this time.”
True story: Last week, I was stopped for speeding. I pulled over very soon after the lights went on. I was alone in my own car. The car is properly licensed and registered. I also have a valid driver’s license and proof of financial responsibility. I was wearing my seatbelt and had no contraband in the vehicle. I stopped the car in an empty parking lot adjacent to the road. I placed the transmission in park, set the parking brake, and turned on the interior cabin light (it was night). I placed my hands in my lap and waited for the officer to approach. When he arrived, I lowered the driver’s window so that we could speak. He shined his light at me and asked me to lower the rear window. The window is tinted, but complies with the law. I lowered the window as requested and he shined his light in the back seat. The rest of the encounter went as expected and the officer gave me a printed warning (no fine) to better control my speed.
I suspect lowering your rear window isn’t enough to count as a “search”. After all, there could be someone hiding back there.
As for serious searches, especially of hidden areas like the trunk and glove compartment and under the seats, here’s how it works out :
If you consent,
a. You might get let go sooner after the search
b. The police might damage your vehicle in the process of searching it. They might plant contraband you didn’t actually have. A guest in your car, previous owner, valet, manufacturing worker, etc might have had contraband on them and unbeknownst to you, lost that contraband while in your car. “so THAT’s where that extra bud went or my other crack rock…”
If you decline,
a. They might let you go sooner - searching takes time and they have no reason to hold you
b. They might search your car anyways, and they might plant contraband or find contraband, but in this case, they have to be able to justify the search with probable cause.
Now, one nasty loophole are the drug dogs. These animals can apparently signal on command, essentially giving the police the ability to manufacture probable cause whenever they want. This is unfortunate but nevertheless you do not gain by helping the police investigate you.
I would be apologetic but clearly state you don’t consent to searches. If they persist with the search, make sure to state loudly and clearly for the dash cam - shake your head as well - that you do not consent, but don’t interfere with the officer - in fact, sit at the curb with your hands on your head or something so they won’t be justified in shooting you.
Next time, either have your cell phone video rolling or buy a dash cam. Have you ever watched those youtube videos of police/traffic stops? Some of those detained cite their rights fairly well, but many have no idea what the law really is and make things difficult for the police by acting like they think they know the law.
The de minimus intrusion of asking to search is permitted, but if you refuse, that should end it if the cop is on the square.
Any additional time detained that is not relevant to the original purpose of the stop may very well be unconstitutional.
If I’ve got a lot of free time on my hands I tell them they do not have permission to search my vehicle and we can sit there all day if he wants. Sometimes they’ll threaten that you’ll have to wait for a K-9 unit but there isn’t one always available and if one is not wasn’t there a court case about how long they can detain you to wait for a dog or whatever, technically I don’t think they can detain you there forever, but I realize reality on the streets doesn’t always mesh with the laws on the books.
It sounds like asking you to roll down your rear window was a cursory form of an inventory search. Such a search doesn’t require a warrant because cops can’t use it to find evidence of a crime. (If they found evidence, I imagine it would would probably constitute probable cause and allow them go get a search warrant, but I’m not sure.) The purpose is to ensure there’s no threat to their safety, like a passenger in the back seat aiming a gun the officer can’t see through a tinted window. I think how thoroughly they can search probably varies by location.
Oh, I didn’t mean to imply that I thought the request to lower the rear window as a search. I assumed it to be the officer’s wanting to check his safety. He could not see into the back seat and wanted to determine that no one was there. I was just amused because I believe the reason he couldn’t see through the window is because he was shining his light on the glass. It was dark outside and I had the cabin light on, so if he didn’t shine his flashlight on the glass, he would have seen inside easily. But, if he feels safe, then I figure my safety is enhanced as well.
In my experience, they come back after a few minutes in their car and say they radioed in your plate and were told the vehicle had been used in a burglary. That justifies their search, and of course you have no way to challenge what they “heard” the dispatcher report.
I’m always amazed at the people on the TV show ‘LivePD’ who argue and make themselves look guilty to the LEO. I am further amazed how many peeps are driving around smoking crack and drinking. What? You don’t have a house to get stoned in? They never have insurance or a valid DL, either. I spend way too much time on a very rural road where wildlife is trying to kill me, I don’t need these jokers driving down the road. If the cop stops you it behooves you to comply to his requests, if at all possible. IMHO
No doubt the LEOs on the board will be here soon (with sirens and flashers on!). In the meantime, I will observe that being amazed by the number of drunk and high drivers on a cop show is like being amazed at the number of flying people in a superhero movie.
Basically if you happen to be stopped by a K-9 unit, the officer can have his dog sniff around your car. But if the K-9 unit is gonna take ten minutes to get to your traffic stop, then it’s not allowed. The officer who stopped you can issue a threat, i.e. “if you don’t consent to a search I can call for a K-9, and if he finds something, I won’t be merciful,” but it should be understood as a bluff. If you still don’t consent, and the officer follows through and keeps you there for 20 minutes, and they happen to find something during their subsequent K-9 search, that Supreme Court decision should be enough to disallow anything they find, and potentially be grounds for you to file suit for violation of your civil rights.
A cop at a DUI checkpoint smelled my coat, which absolutely stunk of cannabis and asked for permission to search. My car was clean, as was I. My coat had been in a room where people were smoking while I helped a friend install a water heater in the basement (I was halfway through a 3 week tolerance break). I declined the search.
The cop had me pull my car over and wait for a canine unit. The canine cop arrived and we talked, with the dog remaining in his car. He flashed his light in my eyes while engaging in casual discussion. He told me I had no evidence of drug use, other than odor and I explained about my coat. He sniffed my jacket sleeve and chuckled.
He then explained to the first cop that he was finished, and he left. The first cop told me I could leave, although he glared hard at me.
IIRC in a recent court decision (Appeal? SCOTUS?) it was determined that extending a traffic stop beyond what was necessary (in this case, actually to get the dogs to arrive) was considered arrest, and therefore needed probable cause. Broken taillight was not probable cause beyond the time it would normally take to right the appropriate ticket. For a detention beyond that, they needed the proper PC to keep the person around afterwards.
Unfortunately, to make this point, you need to be illegally searched, have incriminating evidence found, and then petition the court - probably through a layer or two of appeals - to have the evidence thrown out due to improper search. This assumes you have the incriminating evidence, the finances to fund that level of legal fight, and judges who take their job seriously rather than bend over backward to allow improper police conduct. Plus, if they are going to plant evidence, they will. It’s sad that we consider this a possibility.
Simplest thing is to be polite and respectfully decline a search. I don’t see a problem with opening a window - they don’t see anything much more than they would anyway. (Plain view).