QUESTION
Can an officer search my car for drugs without permission?
Asked on May 26th, 2011 on Criminal Law - Michigan
More details to this question:
My husband and I got in an argument so he left to clear his head but we didn't have a lot of gas so he just went around the block and was reading a book. An officer pulled up behind him and told him to get out of the car and patted him down then went into our car without permission and opened the center console. In the bottom he found a straw and said I’m not dumb. I know what this is for. When is the last time you have done coke or Meth?" Neither my husband nor I have ever done either. The straw is from when he used to do Percocet. (He’s been clean for almost 6 months) he is being charged with drug loitering. And use/possession of drug paraphernalia. Could these charges stick when he didn't ask permission to search the car?
23 ANSWERS
Automobile Attorney serving East Lansing, MI
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Nichols Law Firm PLLC
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No.
Answered on Jun 10th, 2013 at 10:53 PM
Family Law Attorney serving Bellevue, WA
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Dearbonn Law Offices PLLC
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Your consent is required to search your vehicle. , you even have the right to limit consent. however, if the officer has probable cause to arrest you based on the totality of circumstances, he may search your car without your permission,incidental to your seizure.
Answered on Jun 01st, 2011 at 8:58 AM
Criminal Law Attorney serving Lancaster, NH
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Harden Law Office
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Search and seizure law is always changing. The US Supreme court recently eroded the 4th Amendment in Kentucky v. King, so it is difficult to know the outcome without thoroughly investigating the facts and conducting research. However, it seems that there are some real issues which may lead to suppression of evidence. It is important not to discuss case with anyone and to seek a highly qualified criminal defense lawyer.
Answered on May 31st, 2011 at 4:11 PM
Samuel H. Harrison
As you tell it, this sounds like a bad search. I don't see where the officer has reason to go beyond the initial contact.
Answered on May 31st, 2011 at 4:02 PM
Criminal Law Attorney serving Howell, MI
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Law Offices of Jules N. Fiani
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No, the officer did not have consent to search. It would be necessary for the officer to have reasonable/probable cause to search. Hire an experienced attorney.
Answered on May 31st, 2011 at 3:05 PM
Wrongful Termination Attorney serving Huntington Beach, CA
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Nelson & Lawless
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Could they stick? Yes. Will they? That depends on all the facts. Of course you can fight it. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a search or confession be used against you, and can you be convicted, and what can you do? Raise all possible defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments, for evidence suppression or other motions, or at trial. You certainly face potential jail and fines, so handle it right. Not exactly a do it yourself project in court for someone who does not know how to effectively represent himself against a professional prosecutor intending to convict and jail you. If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through motions, plea bargain, or take it to trial if appropriate. If serious about hiring counsel to help you in this, and if this is in SoCal courts, feel free to contact me. Ill be happy to help use whatever defenses there may be.
Answered on May 31st, 2011 at 1:23 PM
Criminal Defense Attorney serving Santa Rosa, CA
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Michael T. Lynch
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Yes, perhaps. Consent is just one way an officer could legally search a car. There are other legal methods by which a car can be searched. For instance, if a driver was arrested a vehicle could be searched subsequent to arrest. If the driver is on probation, and subject to search by the terms of that probation, then the search would be lawful. There are other exceptions as well, however, sometimes officers just search in violation of the law. Consult with a lawyer in regards to the facts of you particular matter.
Answered on May 31st, 2011 at 10:44 AM
Personal Injury Attorney serving New Orleans, LA
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Bloom Legal LLC
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If the officer did in fact illegally search the vehicle then this certainly could serve as a viable defense against criminal charges. It would depend very much upon the exact details of the situation leading up to your husband's arrest though and is not a failsafe. It would probably be best to hire a local criminal attorney who will be able to determine if there was in fact no probable cause for the search and then work with your husband to have the charges dismissed. If you are seeking legal representation in this matter in Louisiana, we invite you to contact our firm at the information on this page for a free case evaluation.
Answered on May 31st, 2011 at 10:18 AM
Transportation Attorney serving Mamaroneck, NY
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Palumbo & Associates, PC
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The police can search a vehicle without permission when they have probable cause. What constitutes probable cause is another story all together. From what you told me they did not have probable cause, which makes the case against your husband highly defendable. I do criminal defense, and can be reached toll free.
Answered on May 31st, 2011 at 10:15 AM
Criminal Attorney serving Bellingham, WA
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Andrew Subin Attorney at Law
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The officer would need some justification to search the car. In some cases, he can search the car if he arrested your husband for something. (But he has to arrest him for something before searching the car). Search and seizure law can be quite complicated. Your husband needs a good lawyer.
Answered on May 31st, 2011 at 10:04 AM
Appellate Practice Attorney serving Clinton Township, MI
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Thomas J. Tomko, Attorney at Law
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Your husband's case should be reviewed by the attorney defending him in that matter. A vehicle search can permissibly involve search of the vehicle for the protection of the officer. There must be probable cause for the stop, or any search could be the result of an illegal stop. Bring these concerns to the attention of the attorney you hire for a more complete review. I hope that this was helpful.
Answered on May 27th, 2011 at 4:57 PM
Criminal Trial Attorney serving San Jose, CA
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Law Office of Thomas F. Mueller
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It's questionable. The officer needs " probable cause " to legally search the car. They commonly lie about this but with a good lawyer you will probably win on The illegal search issue.
Answered on May 27th, 2011 at 4:53 PM
Criminal Defense Attorney serving Monticello, MN
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Smith, Paulson, O'Donnell & Erickson, PLC
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An officer needs to have lawful grounds to conduct a search of the inside of the vehicle. It doesn't sound like there were grounds to conduct a warrantless search in this case. Your husband should hire an attorney to challenge the constitutionality of the search of the vehicle. If your husband has a public defender, which he might not have if these crimes are both charged as petty misdemeanors, then he should ask the public defender to challenge the legality of the search.
Answered on May 27th, 2011 at 4:40 PM
Generally, the 4th and 14th amendments to the United States Constitution and Article 1, Section 11 of the Michigan constitution prohibit the government from unreasonable search and seizure. There are some exceptions to the otherwise blanket constitutional protections. Based on what you've told me, there was no reason for the officer to search your husband's car. A motion to surpress the evidence may be in order.
Answered on May 27th, 2011 at 4:37 PM
Steven C. Bullock
There would seem to be serious issues with the search and even the charges but a sit down would be necessary to determine your best course of action.
Answered on May 27th, 2011 at 4:32 PM
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This depends what state you are in and on several other factors. It seems like there may be a viable motion to suppress the evidence and/or challenge the idea that the straw must be used for drugs. I highly recommend you speak with and retain an attorney ASAP.
Answered on May 27th, 2011 at 4:32 PM
Chances are, the police will use "implied consent" to justify the search. When you don't implicitly deny the officer permission, you are deemed to have consented to whatever the officer does. Of course, this is assuming there was no probable case. If there WAS probable cause, then no consent is even necessary.
Answered on May 27th, 2011 at 4:31 PM
Criminal Law Attorney serving Los Angeles, CA
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Law Office of Gabriel Dorman
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Whether or not the search of your husband's car was lawful ultimately depends on the specific facts of the case and would require a much more detailed analysis of the events surrounding the search including, but not limited to, what your husband says happened and what the police say happened in the reports. In general, there are three ways in which police can search a vehicle as follows: 1) obtain consent from the driver/owner; 2) police have probable cause to search; and 3) a warrant. Cars are not like houses in that police have greater authority when it comes to car searches then they do with houses. The bottom line, your husband really needs to hire a lawyer and thoroughly discuss his case and evaluate any potential defenses he may have and possible outcomes for his case. I hope this answer was helpful. Good luck.
Answered on May 27th, 2011 at 2:40 PM
Criminal Law Attorney serving Oakland, CA
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Dennis Roberts A Professional Corporation
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Get the Public Defender. A straw is not paraphernalia (unless he was dumb enough to make some statement to the cop confirming that he was using it to snort percoset. Anyhow, he needs a lawyer.
Answered on May 27th, 2011 at 2:18 PM
You should talk to your attorney about a 1538.5 motion to suppress the evidence. If all that was found was a straw and no other drugs or drug residue these charges seem ridiculous and you should fight them.
Answered on May 27th, 2011 at 2:18 PM
Whenever the police bring charges pursuant to a search you should seriously consider hiring a private attorney. An unlawful search can stop a criminal prosecution in its tracks. Hire an experienced criminal defense attorney as soon as possible.
Answered on May 27th, 2011 at 2:17 PM
Search and Seizure is a very complex legal arena. Generally speaking, law enforcement must have probable cause that a crime has been committed in order to pat someone down and cannot search a vehicle without permission, a search warrant, or if searching for evidence to support the crime under investigation. You need to contact an attorney to guide you through this minefield.
Answered on May 27th, 2011 at 1:05 PM
Adoptions Attorney serving Lansing, MI
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Austin Legal Services, PLC
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An officer can only search a vehicle if he has probable cause to do so or he is granted permission. Just having a straw will not constitute drug paraphernalia. You should have an experienced criminal attorney review the police report to determine if the stop is valid and if there are any problems that could get the charges dismissed or reduced. I'm suspecting that there is more to this case than you are telling us. Seek out an attorney right away.
Answered on May 27th, 2011 at 1:01 PM