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WHY CONSENTING TO A SEARCH OF YOUR CAR WILL NOT HELP YOU

You can tell the officer whichever way you prefer… my favorite is the Bill Lumberg. “I’m gonna have to go ahead and say you cannot search my car.” Other very acceptable responses are, “No, no you cannot” or just simply, “No.”

Sometimes they may try guilt trip on you, with the ol’ “If you’ve got nothing to hide, then why not consent.” Sometimes the police officer will use the forceful tactic of telling you that if you say no, he’s just going to bring out the dog. Sometimes the officer will use a double negative question (which they aren’t supposed to do) to trick you in to consenting. I’m sure you’ve heard this line before… “You don’t mind if I search your car real quick, do you?” If you say “no” are you saying you don’t mind. If you say “yes” are you consenting? Regardless, here are some methods behind the madness of refusing a car search. And yes, as always, this is not particular legal advice for a particular person. This is just for conversations sake. And if you do end up arrested, please always feel welcome to call the Kokosa Law Firm 24/7 at 518-907-4694 (or text us at 518-466-3062). In any event, here we go.

Why not consent to a search?

  1. Because this is America, dammit, and not gestapo Germany. You have a right to be free from unreasonable searches and seizures and the sooner you give up that right the closer we are to a totalitarian State where the government controls your every movement. Yes, that was a bit over the top, but if you give up one right, why not give up another… then another. You get the picture.
  1. This is a lose-lose game for you. You may think you know every nook and cranny of your car, but I’m going to venture that at some point in the last year someone else has driven your car. I’ve had this exact case come to me where a young man was adamant that the drugs found in the car after he consented to a search weren’t his. He even suggested that the police officer planted them. After a bit of investigation, it turns out the drugs were prescription drugs were dropped by his brother who actually had a written script for them. That case turned out well for the young man, but what if it wasn’t his brother…? what if it was the mechanic? Do you trust him to come forward and take responsibility?

Sadly, this can go even further. Right now there are more than 300 cases in Texas where the defendant pleaded guilty to drug charges after consenting to searches where the officer found “drugs” but the drugs turned out to be everything from candy crumbs to food seasonings. Those people pleaded guilty just to get out of jail, not because they did what they were accused of. If you are in that spot, the Kokosa Law Firm is here to help you, not coax you into a plea. If we have reason to believe the evidence is weak, we will push as much as we need to get you to the right place in your case.

  1. If you think that giving your consent means that the officer will just assume your innocent and move on, you are sorely mistaken. This goes the same if you think you’ll get out of that speeding ticket. If you consent, they will search. If they pulled you over, you’re probably getting a ticket. While years ago, the courtesy warning was a mainstay of the police officer’s utility belt, these days the officers are being pushed to write as many tickets as they can. Why? Because it’s revenue and in case you haven’t noticed, over the past 20 years traffic violation money has become a huge part of our State revenue.
  1. So the officer says that he’ll bring out the dog to sniff around if you don’t consent? Fine, let him call Rin Tin Tin. What’s the worst that can happen? If there was stuff in your car, and the dog is alerted to it, you’re ending up with the same charge as if you let the officer poke around. The officer will never say it, but they often insinuate that if you are completely cooperative with them, they’ll cut you a break. There’s no truth to that, and more often than not, they are taught by older officers that they’ll get more arrests if they can gain your trust. Your best interest and their best interest are usually never the same.

More importantly, if the officer indicates that he is bringing the dog out, you should ask if you are free to leave. He’ll say “no,” and that you are being temporarily detained. Ask again, every 3 to 5 minutes. If the officer keeps saying “no” at some point your temporary detention is going to become an arrest. He cannot keep you  indefinitely and if s/he wants to mess up his own case, let him or her. And, if the dog indicates there is something in your vehicle and the officer searches and finds nothing, what have you really lost? Certainly not your inalienable rights!

  1. I didn’t say don’t be polite. You can be respectful and still assert your rights. Remember, they belong to you and by waiving them, you are essentially giving something of value away for free to a person who gets promoted by how many arrests he or she makes. Be polite, but say “no thank you.”
  1. In some cases, an officer has the right to search your car without your consent. It doesn’t hurt to just let that officer know that you don’t consent. If he smells weed or there is a vial of white powder in the center console, he can probably search anyway. But, you may want to break out the cell phone and get some video showing you not consenting to a search. It may not count for much at the time, but get it to your attorney and she or he may be able to make an issue out of it.
  1. If you are the passenger in the car, and that car is hot, dirty, whatever, your first question should be, “Am I free to leave.” If the officer says “no”, then sit tight and be quiet. If s/he says “yes,” walk away quietly and without a scene. Your driver may need an attorney so feel free to give us a call at 518-907-4694 once you are out of ear shot of the officer.
  1. Other than to say, “I do not consent” use your one of your other rights such as the right to remain silent. Alternatively, be fancy and say you assert your 5th Amendment right and then be quiet. Pro Tip: It’s the “being quiet” part that is the most important. If the officer arrests you, just ask for your lawyer and then stay quiet. Other than to respond to biographical questions such as name, age, gender, your response should be, “I want an attorney.”

 

Okay, time for the final thought on this topic. In too many situations, people think they can out-maneuver the police or just be really nice to them with the false belief that they will just let you go. The reality is that they are trained to pull out evidence by whatever means necessary without breaking any rules. Most are very good at this, which is why refusing consent to search and then remaining quiet is so important. Everything you say will be interpreted whichever way the officer feels will get him/her to the bottom line in the quickest manner.

I do not in any way condone being rude or obnoxious to the police, however, so don’t get that idea. Sometimes they can be rude to you; don’t return the gesture. At the end of the day, they aren’t paid to make friends, they are paid to make arrests. Most of the time, a jury will give the officer a pass for being rude with the understanding that they probably have a tough job. A defendant never gets that advantage. If you are a jackwagon and you are at trial, you’d better believe that the prosecutor is going to make sure everyone in the courtroom knows it. Jurors often connect being rude with being guilty.

 

And my final word… get a dash cam. They’re like $30 these days and they don’t lie, fabricate, or embellish.