Here’s the scenario. You’re driving when you hear the cop sirens and see an officer pull up behind you. Sweaty palms and dry mouth set in because you have some marijuana in your vehicle. Do you divulge your stash? Do you hope the cop won’t ask?
With advice from experienced defense attorney, Shawn McDonald of SMB Criminal Defense Lawyers, here’s what you do: Deny. If an officer requests to search your vehicle, you can decline respectfully by saying, “No, my attorney advised me to not let you search my car.” In some cases McDonald has seen gestures of honesty play in favor of a client in court, but it’s not worth the risk.
What if the officer continues to press you about searching your vehicle? Know your rights. Without probable cause, the police are not permitted to search your vehicle. Probable cause means police must have some facts or evidence to believe you’re involved in criminal activity. Common examples of probable cause include the sight or smell of illegal substances in plain view or an admission of guilt for a specific crime. If any of these criteria are met, it would allow an officer to perform a search and make an arrest.
Keep in mind the traffic violations like speeding or a broken taillight do not constitute probable cause. Police may persuade you to admit breaking a law. For example, an officer may ask, “Do you know how fast you were going?” It’s within your rights to exercise the 5th Amendment protection against self-incrimination by refusing to admit you might have broken a law. The best answer to that and similar questions is “No, Officer.” Because anything you say can and will be used against you in court, the less you say the better. You also don’t want to announce to police that you know your rights. They’ll take that as a confrontational.
Refusing a search request is not an admission of guilt and does not give the officer the legal right to search or detain you. Beware of the legal loophole question, “You don’t mind if I have a look in your car?” The appropriate response here “Officer, I know you’re just doing your job, but I don’t consent to searches.” Some officers may use their authority to coerce an admission from you, asking “What do you have to hide?” In such cases, continue to politely repeat your refusal. The 4th Amendment protects your right to refuse search requests, but it doesn’t require police to tell you about your right to refuse.
If an officer proceeds to search your car and finds illegal substances despite your refusal, an attorney can file a motion to throw the evidence out in court. The presiding judge would have to agree that your 4th Amendment right of probable cause protection was violated.