No matter how careful a driver you may be, the sight of flashing red and blue lights in your rear view mirror likely only inspires dread. This feeling intensifies if you are asked to step out of your vehicle and permit the officer to conduct a search, and hits its peak if the officer should discover something illegal. If you are arrested for possession of drugs or paraphernalia after a traffic stop, what should you do? What are some steps you can take to avoid a vehicle search? Read on to learn more about these laws.
Can you legally resist a vehicle search?
The Fourth Amendment of the U.S. Constitution prevents the government from conducting any unreasonable searches or seizures of individuals' property or belongings. This protection extends to searches of your home and -- in some cases -- your vehicle. However, as with most laws, there are some exceptions.
First, you must determine whether the search would be considered "reasonable." If so, it is exempted from the Fourth Amendment prohibition against unreasonable searches and seizures. Some factors that have been used by courts to determine whether a search is reasonable are:
- If the searching officer had a justifiable suspicion that you were engaged in criminal activity;
- If you were driving in a high-crime area;
- If any contraband or other items were in plain view; and
- If you were detained for only a brief period of time.
In addition, there are a number of interventions that are not considered "searches" by the court system -- so are not subject to the Fourth Amendment restrictions. These include:
- The use of a drug detection (or K-9) dog to sniff around the outside of your car;
- A physical pat-down of you and any passengers; and
- A sobriety or immigration checkpoint at which random vehicles are stopped and inspected.
If you believe the officer has no probable cause to search your person or vehicle, you may lawfully refuse to permit this search. However, in some cases, the officer may simply detain you until a warrant to search your vehicle can be procured. In other cases, the officer may call for a K-9 unit to sniff the exterior of your car (which is not technically considered a search) and then legally search your car if the K-9 unit indicates the presence of drugs or contraband.
What should you do if you are arrested after a traffic stop?
If you are arrested for possession or transportation of illegal drugs after a routine traffic stop, your drug defense attorney will recommend one of the following options.
Your first option is to challenge the search on Fourth Amendment grounds. Even if illegal activity or items were discovered in your vehicle, if the initial search was unlawful, these items must be excluded from evidence under "fruit of the poisonous tree" doctrine. This is a legal principle that prevents the government from prosecuting individuals based on evidence that was unlawfully obtained. Unless the police and prosecutor can find an alternate way to establish that you were in possession of unlawful items (such as eyewitness testimony), you cannot be prosecuted.
Your next option is to challenge the prosecutor to demonstrate that the illegal items in question belonged to you. Unfortunately, if you own the vehicle that was searched, you will likely be presumed to be the owner of any items within the vehicle. However, if you can establish that these items were placed in your vehicle by another individual, without your knowledge, the charges against you may be dropped and the state or federal government may choose to pursue charges against this individual instead.
Finally, you may want to opt for a plea bargain if you feel your odds of success at one of the above strategies are not good. In most cases, particularly if you don't have a criminal history, you may be able to avoid a felony conviction on your record and spend no time in jail (other than your initial stay before arraignment), as long as you stay out of trouble for the next couple of years.