Once I decided to attend law school, I also decided that if and when I practiced as an attorney, I would spend most of my time in the courtroom. Don't mistake me, I enjoy transactional work a great deal as well, but the courtroom has an energy that is unique and it is usually one of those things that is either addictive or repugnant to an attorney. In my case, it was and remains the former.
Another benefit of being in the courtroom, is the experience. Now I'm not just talking about the experience gained in the actual practice of law, I'm speaking more of, in this case, with the experience of different people and the various different problems and issues, which arise with every new case.
One of the most common, is the issue of consensual searches of the vehicle.
A common fact pattern is something like, my client is pulled over, he is asked to get out of the car and at some point, the officer asks my client if he can search the vehicle... and I consent to the search. Low and behold, whatever was in there that the client probably didn't want to be found, was and as a result the single charge becomes a multiple offense charge, maybe with felonies, maybe not, but in most cases, the search wasn't necessary.
In Tennessee and America and general, the law grants to the people to rights to be secured in their property and persons from unreasonable search and seizure. I'm paraphrasing the Fourth Amendment to the US Constitution here, but is applicable to Tennessee law enforcement through the Fourteenth Amendment, as well as the Tennessee Constitution has virtually identical language in it.
So does that mean the next time a police officer asks if she can search the vehicle, you tell her to take a long walk off a short pier? Well, its up to you but I'd definitely advise against it. First, police officers keep us safe, and for every one who abuses their power, there are hundreds who don't. Second, there are things police can legally do regarding a vehicle search during a stop. Third, you are generally asking for trouble if you get an unwarranted attitude with a police officer (or anyone else for that matter).
Let's look at what the police can legally do regarding a search of your vehicle during a traffic stop. Its called the Plain View Rule, and basically, anything in plain view, i.e. looking through the windows either using a flashlight to illuminate or not, is fair game, if you have a green leafy substance on the floorboard of the backseat, the officer doesn't need your consent to open the door and seize it.
But Tennessee law has some pretty powerful safeguards regarding your right to refuse a search of your vehicle.
First, I should point out that if the officer asks you if he can search your vehicle, that is not a search or seizure in and of itself, so there is no law broken by asking.
So what happens if you refuse? Well, under the law, the police officer has the right to keep you stopped for as long as is necessary to effectuate the traffic stop. So if you refuse, and the officer keeps you on the side or the road for four hours trying to wear down your resolve, that is a violation of your rights.
Now what happens if you do consent. First, the officer can ask permission, he cannot threaten, intimidate, harass or otherwise cajole you into consenting. But lets say he asks, you consent and he searches and finds something. First, your consent can be limited in scope (this applies to consensual searches of your home as well, by the way).
Example: I'm a patrolman, I stop you, and I ask if I can search your car. You say yes, but only the passenger areas. I search under the driver's seat and find a hand grenade. Then I pop the trunk and find a bunch of illegal fireworks. What happens. The scope of your consent is valid with the hand grenade, it would be admissible. It would not be valid with the fireworks, so their use as evidence against you at trial would be inadmissible.
Second, remember what I said about the length of time it takes to effectuate a stop. If I pull you over for speeding, that means I check the license and registration and issue a citation and let you go about your business. If you match the description of a suspect wanted in the area, I have time to check you license, your registration, determine if you are the suspect and either arrest you for it or let you go about your business.
So the next time you are asked to allow a search of your vehicle, remember the law works for you, but you have to use it. and don't subscribe to the nonsense that "only guilty people refuse to consent." You have a right to stand up for your rights, now you know how.
Contact our firm with any questions and have a great week.
Criminal Defense Attorney