Can an officer search my car for drugs without permission? 45 Answers as of June 10, 2013

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?

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Dearbonn Law Offices
Dearbonn Law Offices | Ajibola Oluyemisi Oladapo
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.
Answer Applies to: Washington
Replied: 6/1/2011
Nelson & Lawless
Nelson & Lawless | Terry Nelson
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.
Answer Applies to: California
Replied: 5/31/2011
Law Office of Richard Williams
Law Office of Richard Williams | Richard Williams
The law is not so clear as to when a police officer has a right to search a car with or without permission. A car, as it is mobile, gives rights to police officers to search without a warrant or permission if they have probable cause to believe that the car has been used to commit an offense or that there is contraband in the automobile. Whether the officer had probable cause to search is determined on a case by case basis. For you husband to be charged with drug paraphernalia the instrument discovered by the police, (the straw) would have to contain at least trace elements of a controlled substance. The fact that it was once used for ingestion of percocet would qualify as drug paraphernalia. The charge for loitering for purposes of attaining drugs would be a very difficult case for the prosecution to prove if he was merely sitting in a car reading a book.
Answer Applies to: Alabama
Replied: 5/31/2011
Jules N. Fiani, Attorney at Law
Jules N. Fiani, Attorney at Law | Jules Fiani
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.
Answer Applies to: Michigan
Replied: 5/31/2011
Timothy J. Thill P.C.
Timothy J. Thill P.C. | Timothy J. Thill
This is an issue your attorney can pursue in a motion to suppress evidence recovered. However, it is unlikely you will prevail, as the officer had a right to stop and check out the parked car.with an occupant sitting in it, especially if this happened late at night. A lawyer will go over the evidence and is in a better position to give you an opinion as to whether it is worth while to file that motion to suppress.
Answer Applies to: Illinois
Replied: 5/31/2011
    Harrison & Harrison
    Harrison & Harrison | Samuel 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.
    Answer Applies to: Georgia
    Replied: 5/31/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    An officer needs probable cause to search a vehicle or a search warrant signed by a judge. He can search if you give him consent and some officers will claim they were given consent to search. If they have made a lawful arrest for DWI or some other crime they can search as a search incident to arrest to inventory property, but not for a traffic offense. If the search was illegal the drugs and contraband will be suppressed as the product of an illegal search and the case will be dismissed. I have had hundreds of cases dismissed due to illegal searches. I have lawyers in every city in New York State. Feel free to call for a consultation.
    Answer Applies to: New York
    Replied: 5/31/2011
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    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.
    Answer Applies to: New Hampshire
    Replied: 5/31/2011
    LynchLaw
    LynchLaw | Michael Thomas Lynch
    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.
    Answer Applies to: California
    Replied: 5/31/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    That depends on the circumstances. Why did the officer say he or she stopped you? Was there any reason for the officer to suspect weapons or drugs were within the reach of your husband? Was there an informant? In order to answer your question, I would need a lot more information because an officer must have a reasonable suspicion to stop and detain someone. Once the person is detained, the officer can't search the person or her vehicle unless the cop has a warrant or circumstances bring the search under one of the exceptions to the warrant requirement. The main exceptions are search incident to arrest, or reasonable suspicion that drugs or weapons may be accessible to the person under arrest. If the cop was unable to articulate a basis for the search and had no warrant, the straw should be excluded from evidence. As an aside, most addicts keep their stash in the center console because they are emotionally attached to the drugs. Every cop knows this and all it takes is a scent to justify a more intrusive search. So don't put anything in a center console that a cop would be interested in seizing. If you'd like to discuss the facts of this case in more detail, please give me a call.
    Answer Applies to: Washington
    Replied: 5/31/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    A search warrant is required to search property or a person. However, a number of warrant exceptions exist. This includes consent where a person may voluntarily agree to a search. In so doing, they waive their Fourth Amendment rights. The search must still be narrowly tailored to the consent given. A warrantless search may occur if an officer observes contraband in plain view. A search may also occur when a person is arrested. If the person is driving a motor vehicle, the search may extend to that vehicle. The search would not, however, extend to a household where the person was arrested without some other basis for the search. Additionally, if a police officer feels that the officer or other bystanders may be in danger, or, if evidence is in danger of being destroyed, it is lawful to conduct a search. Finally,if a police officer has reason to believe that a crime has been or is about to be committed, a warrant-less search is permissible.
    Answer Applies to: Minnesota
    Replied: 5/31/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    The law is very clear on how an officer may search a person or property without a warrant. In order for an officer to search the inside of the car without a warrant, he must be able to articulate what probable cause he had to suspect the car contained contraband or evidence of a crime. An attorney may be able to get the charges dropped if the search was improper. You should consult with an attorney to be sure.
    Answer Applies to: Kansas
    Replied: 5/31/2011
    Bloom Legal, LLC
    Bloom Legal, LLC | Seth J. Bloom
    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.
    Answer Applies to: Louisiana
    Replied: 5/31/2011
    LT Pepper Law
    LT Pepper Law | Luke T. Pepper
    The search is problematic but may be held up. More particulars would help about where it was. As for the drug charge, it seems that these can go away if you can demonstrate your husband was handling his habit. If he is under some sort of treatment, you can maybe show drug test results to the police who may consider them before proceeding.
    Answer Applies to: Pennsylvania
    Replied: 5/31/2011
    Fitzpatrick, Mariano, & Santos, PC
    Fitzpatrick, Mariano, & Santos, PC | Raymond J. Savoy
    Before a police officer can search your car without permission, he must have one or more of the following: he must see illegal items in plain view, he must get permission, he has reasonable suspicion to believe there are illegal items in the car or he can search incident to arrest.
    Answer Applies to: Connecticut
    Replied: 5/31/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    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.
    Answer Applies to: New York
    Replied: 5/31/2011
    Edward  D. Dowling IV Attorney at Law
    Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
    It depends on whether the officer had probable cause to believe your husband was doing something illegal. The determination of probable cause can be complicated depending on all the facts and circumstances. He should hire an attorney.
    Answer Applies to: New York
    Replied: 5/31/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    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.
    Answer Applies to: Washington
    Replied: 5/31/2011
    Law Office of Jonathan T. Sarre
    Law Office of Jonathan T. Sarre | Jonathan T. Sarre
    Assuming your husband didn't do what my clients do all the time and give the cop permission to search the car (even though he knows something is in it), the police can only search your vehicle if they have a warrant or probable cause and an exception to the warrant requirement. Probable cause is "a more likely than not" standard based upon facts that exist to the police officer at the time of the stop. From your question, it doesn't seem like the officer had probable cause to believe he'd find anything (although if the guy is sitting in the car in what is considered to be a "high vice" area and he's doing something that could be considered suspicious like looking around furtively, I guess it could be PC, but not, I'm thinking, under Oregon law, at least that's my hope). Assuming he has the PC, the officer can search your car if he can rely on what's known as the "automobile exception." The automobile exception goes back to the early days of the 20th century when cops actually had to go all the way to the courthouse and find a judge to sign a warrant. The fear was when they got back to the scene of the stop, the car, being of course mobile, would have been long gone. This exception to the search warrant requirement is still in use although it ignores that fact that now the police can call in or even email a warrant request pretty much instantly 24-7 (or just have someone standing there to make sure the car doesn't leave). Based on what you wrote, I say no probable cause, no search, but if there's probable cause then, yes they can search. Sounds like he has a case.
    Answer Applies to: Oregon
    Replied: 5/31/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    Hire an attorney. I think there are illegal search issues here but not enough facts for a conclusion.
    Answer Applies to: California
    Replied: 5/31/2011
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    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.
    Answer Applies to: Michigan
    Replied: 5/27/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    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.
    Answer Applies to: California
    Replied: 5/27/2011
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    The cop had to have a warrant or permission to search. The evidence should be suppressed.
    Answer Applies to: Nebraska
    Replied: 5/27/2011
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    Under these circumstances the police can search a car if they have probable cause to believe there are drugs present or incident to a lawful arrest (though I don't see what crime he could have been arrested for). In addition I doubt a straw by itself is drug paraphernalia so he needs an attorney if he is really going to be charged. Finally there is no such crime as drug loitering.
    Answer Applies to: California
    Replied: 5/27/2011
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    Sounds like a decent argument that the alleged paraphernalia was found illegally by the officer and could be thrown out. Hire a lawyer.
    Answer Applies to: Colorado
    Replied: 5/27/2011
    Vermeulen Law office P.A.
    Vermeulen Law office P.A. | Jacob T. Erickson
    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.
    Answer Applies to: Minnesota
    Replied: 5/27/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    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.
    Answer Applies to: Michigan
    Replied: 5/27/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    I would urge you to retain a criminal defense lawyer in your community and discuss whether or not this appears to be an illegal search, if the officer lacked sufficient probable cause to conduct the search. Good luck!
    Answer Applies to: Georgia
    Replied: 5/27/2011
    Attorney at Law
    Attorney at Law | 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.
    Answer Applies to: Michigan
    Replied: 5/27/2011
    Eric M. Mark, Attorney at Law
    Eric M. Mark, Attorney at Law | Eric Mark
    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.
    Answer Applies to: New Jersey
    Replied: 5/27/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    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.
    Answer Applies to: California
    Replied: 5/27/2011
    Law Office of Rankin Johnson IV, LLC
    Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
    Not on those facts. The police can search if they have a warrant or an exception to the warrant requirement. Consent is one such exception. Another is the automobile exception, but that only applies if they have probable cause that they'll find evidence of a crime. Baseless suspicion is not probable cause.
    Answer Applies to: Oregon
    Replied: 5/27/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    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.
    Answer Applies to: Michigan
    Replied: 5/27/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    That needs to be determined by an attorney bringing a suppression motion for you. I'm sure the cop probably has a version of the story that gives him probable cause to search the car - suppression motions are very hard to win. But you may have one of the few winners. You need to have an attorney look at the police reports and compare them to your husband's version of what happened. Good luck.
    Answer Applies to: California
    Replied: 5/27/2011
    Law Office of James A Schoenberger
    Law Office of James A Schoenberger | James A Schoenberger
    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.
    Answer Applies to: Washington
    Replied: 5/27/2011
    Komanapalli Massey LLP
    Komanapalli Massey LLP | Mark A. Massey, Esq.
    If the facts are indeed as you described them, then the officer committed an unlawful search and seizure in violation of the fourth amendment of the US Constitution, and all evidence will be tossed along with the charges against your husband. Call us for the best criminal defense available. His case will require a motion to exclude evidence based upon the illegal search.
    Answer Applies to: California
    Replied: 5/27/2011
    The Law Offices of Gabriel Dorman
    The Law Offices of Gabriel Dorman | Gabriel Dorman
    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.
    Answer Applies to: California
    Replied: 5/27/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    I think it will be decided on what the officer's reasonably articulable suspicion of criminal activity was at the time he initiated the stop because once he has stopped him he has the right, for officer's safety, to search wherever the driver could reach. However, if at the time of the search, he had already removed the driver and secured him such that there was no basis to utilize the "officer safety" search basis, then it would be a warrantless search and prohibited by the 4th Amendment to the U S Constitution. Stay well.
    Answer Applies to: Alabama
    Replied: 5/27/2011
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    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.
    Answer Applies to: California
    Replied: 5/27/2011
    The Law Offices of Robert L. Driessen
    The Law Offices of Robert L. Driessen | Robert L. Driessen
    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.
    Answer Applies to: California
    Replied: 5/27/2011
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    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.
    Answer Applies to: Hawaii
    Replied: 5/27/2011
    Nichols Law Firm
    Nichols Law Firm | Michael J. Nichols
    No.
    Answer Applies to: Michigan
    Replied: 6/10/2013
    Lacy Fields, Attorney at Law, LLC
    Lacy Fields, Attorney at Law, LLC | Lacy Fields
    Is this a Missouri case? I have never heard of anyone in my area being charged with "drug loitering." I would be interested in seeing the statute or ordinance number he cites. There is no easy answer to your question. Searches of your car are governed by your Fourth Amendment Rights and requires probable cause. Based on what you told me, it sounds like the Officer had none. But if he smelled something, your husband said something, etc, that could all change. If you want to discuss additional details of your case, feel free to call my office.
    Answer Applies to: Missouri
    Replied: 5/27/2011
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