Probable cause to search a car

[Saint_Cad]

So let’s say I’m stopped by a cop. He starts asking questions and asks to search my car. I say, “I do not consent to a search. Am I free to go?” The cop claims he smells alcohol (or marijuana but we’ll keep this simple). He uses this as a basis to search my car. No alcohol or bottles or cans are found. I am not breathalyzed or if I do, no alcohol. Did the cop just perform an illegal search since clearly there was nothing in the car to justify his claim that he suspected alcohol in the car.

If not, then how would there be ANY 4th Amendment protection if a cop can claim, “I smell X” even if the search turns up no indicators of X?

[Procrustus]

As I recall (and I’m too lazy to do the research right now) he can search your car “incident to arrest” but not to look for reasons to arrest you.

[md2000]

IIRC a police officer must have “probable cause” to search the car. Probable cause was defined as “more likely than not that you committed a specific crime and this search will provide evidence for that.” If the cop flat-out lies about smelling alcohol - well, if he plants pot on you, you’re kind of screwed too? Presumably if he or the department “always” smells alcohol, that might come out in the trial.

[P]robable cause is a flexible, common-sense standard. It merely
requires that the facts available to the officer would “warrant a man
of reasonable caution in the belief,” Carroll v. United States, 267
U.S. 132, 162 (1925), that certain items may be contraband or
stolen property or useful as evidence of a crime; it does not demand
any showing that such a belief be correct or more likely true than
false.

“[S]uspicion, or even ‘strong reason to suspect’” is not enough to constitute probable cause. See Henry v. United States, 361
U.S. 98, 101 (1959).

Here’s an interesting case:

0250053.pdf

basically, the guy had a pile of home-made CDs scattered across the passenger seat and the floor. The officer claimed that a significant quantity of home-made CDs indicated an intent to sell, therefore the material being for the purpose of selling was illegal and they could search the car to confiscate it all according to Virginia(?) law. Upon searching, they found pot and money in bags under the passenger seat.

I remember reading an analysis of this case at the time - essentially, some clever fellow had figured out “if you see more than one home-made CD, claim they are for the purpose of selling and that gives you grounds to search the car for more, and for whatever you can find.” Bypass the 4th amendment.

The judges appear to have seen this for the back-door ploy it was and said no, you need to have some indication it was intended for sale other that “it’s there”.

the Supreme Court in Brown v. Commonwealth noted:
We have considered a number of instances in which an officer’s expertise and training made his observation of an item suspected to contain contraband a significant factor in the probable cause analysis. In none of these cases, however, has that fact alone supported a finding of probable cause when the suspicious item is also capable of legitimate use.
270 Va. at 420, 620 S.E.2d at 763. The Court explained “that for the last 25 years, [it] has
consistently declined to find that probable cause can be established solely on the observation of
material which can be used for legitimate purposes, even though the experience of an officer
indicates that such material is often used for illegitimate purposes.” Id. at 420-21, 620 S.E.2d at
763.

So, while suppressing the evidence:

“As in Brown, we cannot find probable cause based solely on suspicious items that could be legitimate. The CD cases the officers saw are somewhat scruffy and scratched. None of the CD cases or individual CDs appear to be newly acquired or to have any of the usual indicia of items being held for sale. They contain no pricing labels, no cellophane wrapping, no boxes, and no customer lists. None of the CDs were duplicates of others. Indeed, the officer testified that the forty CDs seized “were all different.” These facts indicate the CDs were possessed for personal use instead of sale, rental, or transfer.”

[pkbites]

@Saint_Cad

So let’s say I’m stopped by a cop. He starts asking questions and asks to search my car. I say, “I do not consent to a search. Am I free to go?” The cop claims he smells alcohol (or marijuana but we’ll keep this simple). He uses this as a basis to search my car.

The odor of marijuana emanating from inside a vehicle is probable cause to search. See Carroll, Gant and Secrist. If you’re worried that an officer is just going to lie, that’s a different issue from whether or not odor of pot is PC.

The problem with using the odor of alcohol as PC is that some states allow for an open container that has been resealed to be transported in a vehicle as long as it’s stored out of reach. Such a container may still provide odor of intoxicant. Also, just having the smell of booze on ones person or vehicle isn’t in itself overwhelming evidence of a crime. I might use it in addition to other dynamics, like slurred speech and such, but I wouldn’t rely on it alone.

I am not a lawyer, this is not legal advice.

[Senegoid]

Heck, never mind whether there’s any probable cause for anything. Never mind even asking about it. If an officer wants to search your car, all he has to do is claim that you consented. If a cop is inclined to be dishonest, he might as well be dishonest the easiest way.

Your most basic protection against dishonest cops lies in the assumption that cops are honest. Sometimes they are. Sometimes they aren’t, in which case, they aren’t. Unless we all wire ourselves up with video, audio, and smell-o-recorder 24/7, we’re all at the mercy of any corrupt cop we happen to meet.