In a YouTube video titled, “Cop Gets Angry When Driver Tells Him He Needs A Warrant to Search His Car”, a gentleman is stopped by police while driving his SUV. (See video below).
Following a brief investigation the police officer asks the driver for his consent to search the vehicle. The driver calmly refuses a search without a warrant. There is a pregnant moment of silence before the police officer becomes irate and begins spewing a barrage of obscenities towards the driver. The angered officer then gets in his patrol car and leaves. No search was conducted.
As criminal defense attorneys, we are often asked what rights “the people” have regarding police searches involving vehicles. Generally speaking, our analysis must begin by looking at the protections provided by federal and state laws. The Fourth Amendment of the U.S. Constitution, as applicable to the states under the Fourteenth Amendment, protects us and our property against unreasonable searches by the government. What constitutes an “unreasonable” search is fact specific. If the vehicle search involves a search warrant the Bill of Rights says that search warrants shall only be issued when accompanied by a sworn statement supporting probable cause describing the place to be searched and the thing to be seized. Texas has nearly identical provisions in her constitution under Article 1, Section 9, as well as in the Texas Code of Criminal Procedure Article 1.06. Irrespective of the presence of a warrant, these laws protect us from unreasonable searches and seizure. How do police get around these laws?
The most common way police gain access to a vehicle is through consent. As the example above shows, law enforcement can ask to search your person or property without any suspicion of contraband being present or probable cause to believe a crime is being committed. The request to search can be as simple as, “do you mind if I have a look inside your car?” or a more forward statement, such as “I want to look in your car.” These are simple requests by law enforcement akin, in the eyes of reviewing courts, to a simple “good morning,” or, “hello.” Once consent to search is given, the police can, in most cases, search without offending warrant requirements under the Fourth Amendment or Texas law.
However, even if consent is given, the scope of the consent can be limited. A person may limit the time, intensity, duration, and area of the search. For example, a person can tell the police that they can only search the trunk of the vehicle, not open any containers; or can instruct the police that they may only search for 10 seconds. In other words, the police authority to search based on consent allows them to only search within the bounds of the consent given. As the video above suggests, such limitations will not endear one to the police. Generally, in the course of conducting vehicle searches officers are trying to circumvent the stringent requirements of the federal and state constitutions enumerated above so “speak up or forever hold your peace.”
Of course, analysis into the scope of the consent is irrelevant if the consent to search was not voluntarily given in a positive and unequivocal manner. Complicating this analysis though is the consistent holding by courts that consent may be given either orally or through ones actions. Thus, we as criminal defense attorneys constantly scrutinize the facts to see the manner in which the consent was given. For example, silence is not consent, nor is saying, “I dunno.” Oftentimes, police will tell a person that he “can simply arrest” the driver and then conduct the search. The consent to search cannot be a product of coercion or threats. Unlike federal law, Texas requires prosecutors to prove that consent was freely given by “clear and convincing” evidence. That standard is more difficult to meet if it can be shown that an officer threatened the defendant or if the defendant never actually consented.
Due to the high number of minority drivers being stopped and having their persons and vehicle searched without probable cause, some cities, such as Austin, have adopted policies which require consent to search be given in writing and recorded by audio and/or video, if available. The Austin Police Department (APD) administration found that such a high number of “consensual” searches negative impacts the Department’s relationship within the community. In order to collect data for statistical analysis, APD requires all consent forms be routed through their chain of command regardless of whether contraband is found.
APD also requires the person giving consent to be in a position to withdraw his or her consent. While this does not necessarily mean that the officer must conduct the search in plain view of the person giving consent, they should keep the person in a position where he or she can withdraw consent. If the consent is revoked, the officer must stop his or her search unless probable cause to continue searching has developed. It can be fodder for a defense attorney to argue that his client was handcuffed and in the back of a patrol car with the windows rolled up while an officer was conducting a consensual search. How can he get the officer’s attention to withdraw his consent? More often than not, the officer testifies that he simply did not hear the defendant. Should a drive then consent to a search of their vehicle?
Like most decisions involving interactions with the police, a certain cost-benefit analysis should be applied. What does a person gain by giving consent? Besides time and possibly inconvenience, what could be the harm? The gains are minimal; the harm can be potentially devastating.
Years ago, the son of a highly-respected real estate attorney was arrested for possession of a controlled substance. The police had pulled him over for an expired inspection sticker. They asked him for permission to search his car, which the young man consented to. A small baggie of cocaine was found in the back seat of his vehicle. The young man tried explaining to the police that the drugs were not his; he had given a ride to several friends a couple of weeks earlier, driving everyone to the coast for spring break. His explanation made little difference to the police. He went to jail and was charged with a state jail felony.
This young man believed that he had nothing to hide, and certainly nothing illegal, in his car. Most of us, if similarly situated, would likely feel the same way. The young man subsequently explained to his criminal defense lawyer that he was afraid of what would happen to him if he refused to give consent. Such fears are not entirely unfounded. Visit the link to the YouTube video referenced above for some insight into that scenario.