12.13.2015
policy

Ask a Weed Lawyer: How to Avoid Being Searched

Just say no. And when cops insist yes, do not physically resist.

John Bussman is a criminal defense attorney in Orange County, California. He is an expert on marijuana law, a member of the NORML Legal Committee, and a longtime supporter of drug policy reform.

Q: How can I protect myself from being searched if I am approached by a law enforcement officer?

The 4th Amendment to the U.S. Constitution guarantees the right to be free from “unreasonable” searches and seizures. Since unreasonable is a subjective term, courts are still trying to define it. For more than 200 years now, our judicial system has been crafting rules regarding searches, then finding exceptions to those rules, then finding exceptions to those exceptions. This game keeps lawyers busy; it keeps everyone else confused.

To start, focus on these tips:

1. Never consent to a search of your property. If police ask you to expressly cooperate with a search, you should politely refuse.

2. Never fall for the old, “Do you want to go inside and grab a jacket?” trick. If you expect that you’re about to be arrested, don’t walk near anything that you don’t want searched.

3. If you have the opportunity to do so, pull over and park in a marked parking space. If you are arrested for any reason, there’s a good chance that you can avoid an inventory search of your vehicle.

4. Don’t be intimidated.

5. Don’t physically resist an unlawful search. That’s your lawyer’s job.

Image via Will Geary

Here’s a quick primer on your privacy rights and some helpful tips that you can use to protect yourself in case of unwanted contact with police.

You have a constitutional right to privacy. If police violate your right to privacy, for instance illegally searching your car and finding a cooler full of weed in your trunk, your lawyer should be able to exclude the weed at trial.

This is called “The Exclusionary Rule.” The exclusionary rule is meant to deter bad conduct by police.

But if police act in good faith by performing a search that they sincerely believe is legal (and in doing so discover a cooler full of weed in your trunk), then there’s no bad conduct to deter. The weed will probably be admissible at trial. This is called the “good faith exception.”

If you enter your own home and walk to your bedroom, the police may enter and search anything that you walk near. 

The next big exception to the 4th Amendment is called the “search incident to a lawful arrest.”

If you are arrested for any reason, police can search you. The justification here is “officer safety.” They will pat you down for weapons and contraband before you are booked into jail. Anything they find may be admissible as evidence against you in court. If you are arrested, police can also search anything that was recently within your arm’s reach. That may include the entire interior of your car.

Be aware of this cop trick: You are arrested on the front porch of your own house. Police do not have a warrant to search the house. They might offer to allow you back inside so you can grab a jacket. If you enter your own home and walk to your bedroom, the police may enter and search anything that you walk near. Helpful tip: if you’re about to be arrested, don’t walk near anything that you don’t want searched.

Another exception to the 4th Amendment is called the “inventory search.” If you are arrested in your car, police can impound the vehicle “for safe keeping” so that it’s not left blocking traffic or in a dangerous area. If they impound your car, they can take an inventory of its contents. If they find contraband while taking inventory of your property, that evidence will be admissible against you in court.

Image via Boylagi/VSCO

If you see red and blue lights flashing in your rearview mirror, and you don’t want cops to perform an inventory search of your vehicle, pull over and park some place where the car can be left safely overnight. A shopping center with a large parking lot is ideal. If you’re taken into custody, there’s a chance the cops will leave your car where it is rather than impounding it and performing an inventory search. Of course, they can still search the vehicle “pursuant to a lawful arrest” if they want to.

There’s a popular misconception that police need “probable cause” to stop and search you on the street. This is false. To briefly detain pedestrians, police only need “reasonable suspicion.” "Reasonable" suspicion can be anything. Officers can claim “suspicion” based on some bullshit like, “The subject was walking funny and I suspected that he might have a gun in his waistband.” If police decide to stop you, they can pat you down. Again, the justification is “officer safety.” Any contraband that they find will be admissible against you in court. This practice is called a “stop and frisk” or a “Terry stop” (from the case of Terry v. Ohio).

The most common justification that police claim in cases involving warrantless searches is “consent.” If you expressly allow police to search you, you're cooked.

Police never simply ask: “May I please have your consent to search the trunk?”

Instead, they’ll say, “Please open up the trunk. You don’t have anything to hide, do you? I’m going to check really quick. Thanks.”

If you pop the trunk without vocally objecting to the search, the DA will argue that you tacitly consented.

Police are trained to intimidate you. Sometimes, it’s hard to tell whether or not you have a right to refuse a search. Here’s another helpful pointer: If police ask for your permission to perform a search, you should refuse. If they had a warrant, they wouldn’t be asking.

After you refuse a search, prepare for the cops to make your life miserable. They will threaten to bring in a canine unit. They’ll tell you that they’re getting a warrant to physically break in. They’ll say that you’re only making things harder (harder for who?). Just remember: If they were justified to perform a search without your consent, they would have already done it.

If you believe that police are violating your privacy rights by searching you unreasonably, do not attempt to intervene or physically resist. It’s your lawyer’s job to suppress any unlawfully obtained evidence when/if your case ends up in court. Your lawyer’s arguments will depend on the justification that the officer claims for the search.

Prosecutors have the burden of trying to convince a judge that your case fits within some exception to the 4th Amendment. Your lawyer's job is to shoot holes into the cops’ story.

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