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Can a Police Officer Search My Things During a Traffic Stop?

Let’s say you’re out with your friends and, after a great night, it’s time to take them home. Unfortunately, on the way to your friend’s house, you are pulled over for speeding.  After making small talk, the officer tells you and your friends he is going to search your vehicle and everyone in it because he can smell the odor of marijuana emanating from the vehicle.  He then gives you no choice and orders everyone to step out of the vehicle. He then searches one of your friends, who is in possession of marijuana and is ultimately arrested.  This scenario is extremely familiar to most, especially given the new marijuana laws that are sweeping the country.  What are the rights of you and your passengers at that moment? 

In order for the police to make a lawful detention of you and your passengers, he must at least have reasonable suspicion to do so.  Reasonable suspicion is defined as sufficient articulable facts and circumstances which would lead a reasonable officer to conclude that criminal activity has occurred or is occurring.  In the case of speeding, as long as the officer can articulate, based on the facts and circumstances, that he believed you were, in fact, driving faster than the posted speed limit, that is sufficient to satisfy the reasonable suspicion necessary for a lawful detention.

Police officers have been conducting traffic stops such as these for decades.  Courts across the country have consistently held that officers can search the occupants of a vehicle based solely on the fact that an odor of marijuana is emanating from the vehicle.  However, a case out of Houston, Texas, Meane v. State, may change this very scenario.

In order for a police officer to lawfully search you without a warrant, a very specific set of circumstances must be present.  The officer must have probable cause (the smell of marijuana) AND an exception to the warrant requirement.  There are five:

  1. Search Incident to Arrest
  2. Consent
  3. Automobile Exception
  4. Plain View
  5. Exigent Circumstances

Using these exceptions, let’s apply them to our scenario. Search Incident to arrest does not apply because no one has been placed under arrest yet.  Consent does not apply because the officer did not ask.  The Automobile Exception does apply; however, that only affords the police authority to search your vehicle.  The plain view arguement does not apply, because there was no marijuana in plain view.  Even if there was, that would only afford the police the authority to seize that object.  Exigent Circumstances doesn’t apply either unless the police can articulate:

  1. Immediate aid to you or a passenger was necessary;
  2. A “Pat down” of you or a passenger was necessary due to reasonable articulable facts of being armed and dangerous; or
  3. You or a passenger was actively destroying evidence

Prior to Meane v. State, in scenarios just as the one described above, the exception to the warrant requirement was simply presumed.  Meaning, there was no articulation from the police as to what exception to the warrant requirement was being employed.  Let’s add some facts to our scenario.  Let’s say the officer orders all occupants out of the car and tells everyone to sit on the curb and not to move.  Everyone complies.  The police search your vehicle and find nothing.  A police officer then searches your friend because there was a smell of marijuana in the vehicle and he states he has probable cause to search your friend based on that odor of marijuana.  That is only an accurate statement if he can articulate what exception to the warrant requirement (1 through 5 above) he is employing.  In the scenario, the only exception that might fit is exigent circumstances; however, no one needed aid, there was no reason to think anyone was armed and dangerous, and no one was actively destroying evidence.  It is not enough that evidence could have been destroyed at some later time.  Accordingly, in this scenario, a warrantless search is unjustified. 

As a practical matter, it is in your best interest to follow the instructions of the police exactly as they tell you.  The place to fight is not on the side of the road but in the courtroom.

Did police find evidence during a questionable search? Austin Defense Team can help! Call (512) 399-3221 now for a free consultation.

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