Usually, people have the right to refuse a police search of their vehicle. But once a person is arrested, police can perform a search without consent. The term for this situation is “search incident to arrest,” and resisting police in this situation will only make a bad situation worse.
First off, yes, you can refuse a search of your vehicle when police have not found probable cause or initiated an arrest.
Let’s say an officer pulls you over for speeding or because your brake light is out. During the traffic stop, they may ask for permission to search your vehicle. When an officer asks permission, that’s a signal that they don’t have probable cause.
Drivers have a constitutional right to say no, and doing so is not illegal. It’s also not incriminating. Refusing a search can’t be used as evidence of guilt.
If “probable cause” is the legal standard that justifies searches, what exactly is it?
Probable cause clears a higher bar than reasonable suspicion, which you may feel a sense of, but does not, on its own, justify a search or arrest. Basically, probable cause means that what an officer has observed would lead a reasonable individual to believe a crime has been committed.
If asked for permission to search, keep it simple and respectful.
Say “No, I do not consent to a search.” Then ask to speak to your attorney. Sometimes the police may perform a search anyway. A competent lawyer will challenge any evidence that the search turns up.
Under the search incident to arrest exception, law enforcement has carte blanche to search persons and property once an arrest has been initiated.
Once you’re arrested, consent is no longer required. The police can perform a search, and any evidence they find can be used against you. Why?
The exception comes from a Supreme Court decision that prioritized officer safety and preservation of evidence.
“Search incident to arrest” is an exception to the US Constitution’s Fourth Amendment, and comes from a Supreme Court decision that created the exception to account for two exigent circumstances (from the perspective of the State):
- To disarm a potentially dangerous suspect
- To preserve evidence¹
The thinking goes like this: Without the search incident to arrest doctrine, a person who’s been arrested could use a weapon to harm an officer or escape, or destroy evidence that could be used in a trial.
Here’s how the “search incident to arrest” exception plays out in traffic stops.
Let’s go back to that example of a traffic stop. You’re pulled over; only this time, you’re arrested during the stop.
Maybe you have an outstanding warrant, or you’re driving with a suspended license. Regardless, you’ll be asked to step out of your vehicle and handcuffed.
Once you’re arrested during a stop, the police may perform their search, regardless of your protests. That doesn’t just mean a search of your person. They can also search your vehicle, plus any area near your car that you have immediate access to.²
Now, let’s talk about how to avoid creating more problems for you and your case by resisting or protesting against searches after an arrest.
Don’t become uncooperative or aggressive in these situations. Doing so can only harm you, whether that means complicating your defense or leading to more charges like interference with public duties or resisting arrest.³
Stay quiet after being arrested.
As difficult as it may be, your best course of action after an arrest is to stay quiet and comply with requests.
Remember that refusing consent to search is a civil right that pays off in court. Resistance is an emotional response that cripples you in court.
Your role is to clearly refuse when allowed, then stop talking. Your attorney’s role is to challenge the search later. Don’t do anything that could escalate the situation.
Instead, stick to bread and butter responses that give us the best possible advantage in the courtroom.
Establish your refusal to consent to a search as soon as possible.
Invoking your rights quickly, including your right to an attorney, is the best way to protect yourself during a search.
Don’t consent before you have to.
Remember, if you haven’t been arrested and a police officer asks for your consent to search, you can say no.
There is no advantage to consenting quickly, and you can’t “un-consent” after a search has started. At that point, whatever they find on you, in your car, or in the immediate area can be used against you.
Searched during a traffic stop? Call Gold Legal.
At Gold Legal, PLLC, we will thoroughly review your situation to determine whether evidence obtained during your search can be challenged or excluded. Whether you’re arrested during a traffic stop or not, you still have rights.
Contact us today for a consultation.
— Kandi Gilder, Attorney at Law
References
- United States v. Robinson. 414 U.S. 218 (1973).
- Chimel v. California, 395 U.S. 752 (1969)
- Texas Penal Code §38.15. Interference with public duties (Tex. 2023).
