I think I’ve seen this discussed on the SDMB before but I didn’t find any relevant threads.
I’m pulled over for a routine traffic stop, and the police officer asks if he can look in my car. I say no.
What can happen next?
(Does it depend much on jurisdiction, or is this pretty much the same across the country?) (I’m in the U.S.)
They have a few options:
But no, there is no legal issue you will face by not consenting to a search. If they have the legal right to a search, they will not ask.
Unless they arrest you, they can only detain you for a reasonable time. I am sure Bricker or G-factor or another SDMB legal expert will be by soon to explain this.
You sometimes need to ask “Am I free to go?”
Yeah, but I think “reasonable time” is on the order of hours, not minutes.
They would need probable cause to get a warrant and as you already said, if they have probable cause they can already search your car without a warrant.
“Reasonable time” depends upon the offense that you were detained for. For a traffic violation, it’s on the order of minutes. In Illinois v. Caballes the majority of the Supremes found:
That was my recollection as well, but a quick google search failed to bear it out. Didn’t do any lengthy research, but a quick look turned up any number of cases and references to 10 minutes or so - roughly the length of time it would take to write the ticket.
If you say no, they will bring a dog around to sniff the car. And you will lose whatever slim amount of sympathy the cops may have shown you.
I’ve been asked twice in my life if I would consent to a search of my vehicle. Both times I said no. No sympathy lost as there was no reason to have any for me to begin with. Both times they asked me questions to try me to give them probable cause and I answered carefully. Both times I was sent on my way. No dogs.
If you consent to the search, the fact that the search was later determined to be completely illegal will be irrelevant. The consent makes the search factually reasonable under the law.
Cops who want to hassle you, will. You gain nothing by consenting. You don’t have to be a dick about it.
Scenario A: You are stopped for having a blown rear taillight. (totally legitimate stop). Officer asks you if he can look in the trunk. You say sure. The officer doesn’t like the look of you and rifles through your trunk until he finds something that could be called a “bludgeon” (say, a tire iron) and you are arrested for Criminal Possession of a Weapon in the Fourth Degree, a Class A Misdemeanor in New York*. The search was without probable cause but it doesn’t matter because you consented. You can’t afford a trial between the attorney’s fees and the time you’d miss from work and anyway you’re probably guilty of the offense as it is written, so you plead it down to some Class B Misdemeanor – the DA won’t plead it down to a non-criminal Violation because they’re not supposed to do that on “violent offenses.” Whoopee, you now have a criminal record you have to explain to every future employer, educational institution, etc. For having a tire iron in your car.
Scenario B: You experience the same stop but this time you say, “Officer I understand you’re doing your job but I do not consent to a search of my car.” All the same things happen, except this time you get the tire iron suppressed because the police had no probable cause, and the case is dismissed.
Never consent to a search.
*New York Penal Code Section 265.01 Criminal possession of a weapon in the fourth degree
A person is guilty of criminal possession of a weapon in the fourth degree when:
(1) He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”; or
I think there might be a tiny little due process problem with that analysis.
Haha, indeed. It’s strange that “bludgeon” is not defined in the statute, even though most of the other enumerated weapons are defined with fair precision – and some, including “chucka sticks” aka “nunchucks” defined to an almost hilarious level of detail
*Chuka stick" means any device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking. These devices are also known as nunchakus and centrifugal force sticks. *
The New York Criminal practice guide suggests that it is impossible for any attorney, “no matter how competant” to “confidently advise a client what objects he should avoid carrying in order to escape per se culpability for carrying a bludgeon.”
That said, one of the tests is whether the object has an obviously legitimate purpose, so a tire iron absolutely was a bad example. A better example would be an unusual-looking piece of driftwood of a club-like size and shape.
Yes, jurisdiction can make quite a bit of difference. For instance, in Washington state we can’t do “probable cause” searches. If I have probable cause to search (and don’t have one of the recognized Fourth Amendment exceptions), I have to take that probable cause before a judge to get a search warrant.
We also have many extra restrictions under our state constitution which give much higher privacy protections than the Fourth Amendment of the US Constitution.
In my police training, the rule of thumb for a reasonable length of time to detain someone while digging for probable cause is no more than 20 minutes (and usually a lot less in most circumstances).
If I make a traffic stop, I can only detain the person long enough to run their information through the computer and write any tickets. If I detain you longer than that, then I have to have articulable reasonable suspicion of some other criminal activity. I can have a K9 sniff around your car, but only if it can be done while I’m writing the ticket. If I hold you longer than that without reasonable suspicion, it’s an unreasonable seizure and anything I find will be suppressed.
Yes, there are a lot of ways we can screw with you if you don’t consent to a search, but not nearly as much as some people seem to think (again, this is in Washington state). If you refuse to let me search your car, I’ll smile and send you on your way. If you’re involved in anything illegal, I’ll get you another time when I have better facts on my side.
I assume, from all I’ve seen and heard, that a trained dog sniffing at the cop’s behest is not a search.
Why? I understand that if the cop happens to smell pot it’s probable cause. But if he brings a tool, the dog, he’s searching.
A test that can only reveal contraband is not considered a search. You have no expectation of privacy in possessing contraband.
Aha!
A cop told me that the only reason he opposed legalization was that it would take away an excuse to search just about any car. He also said that he would almost never lie. That’s the last question I asked because he seemed to be looking at me funny, and I did not want to be searched right at that time.
Also cops can use methods of searching that are not specifically banned. For example, they can shine a light into your car while they’re talking to you and that does not require consent.
Sure, but they can’t require you to move a blanket to reveal what’s underneath.
at least here in tx, we don’t need consent for 99% of the stops. you were pulled over, why? chances are it was a moving violation in which case we MAY arrest you. arrested? your vehicle will be “inventoried” (a la, searched) prior to it being towed. if we (I say we cause I am a p.o.) want to search, we will. sure it’s a lot of power and not all may agree with us having it, but until you change the laws which apply to you and your privacy don’t complain when you say “no” and are searched anyway. and just cause we arrest you doesn’t mean we can’t search, find nothing, and un-arrest you and let you go.
That’s funny. I’m way too old and tired to look it up right now, but I remember that recently a cop did exactly as you say. The “perp” didn’t like and took it to court. You guys lost. It seems you can’t arbitrarily arrest someone for a traffic violation.
Maybe tomorrow I’ll look it up.