Begin at the beginning.
Almost every drug arrest starts from one of these three things:
1. “Consensual” Encounter
2. Traffic Stop
3. Search Warrant
A consensual encounter is what the law calls it when you agree to interact with the police. ?The police can walk up and start talking to you just as much as anyone else can interrupt your day. ?When you are leaving a concert or a game, ever have someone in the street try to hand you something? ?You can interact with them or ignore them. ?Same with the police.
You are completely comfortable ignoring the police, right? ?I doubt it. ?If you simply walk away then you risk being arrested, right? ?Yes. ?Doesn’t seem very consensual.
When do I have to talk to the police?
Sadly, there is no easy answer to this question. ?If you don’t want to interact with the police,?ASK IF YOU ARE FREE TO LEAVE.??If they say no, then you are being detained. ?If they say yes, then feel free to walk away.
Unless you ask, then its anyone’s guess. ?A perfect example happened to client of mine. ?He was walking to down the street to his mother’s house. ?In the offense report, the police officer simply stated, (the officer) made a consensual contact with (client) . ?That was it. ?After further investigation and reviewing the in-car video, it was discovered that the consensual contact occurred when the police pull up beside him and said:
Officer: Do you have any tickets out right now?
Officer: Got nothing on you or nothing like that?
Officer: You?re not sure?
Client: I said no, Sir.
Officer: I said, are you sure?
Officer: So you?re not sure if you have something or not?
Client: I said no, Sir. I told you that.
Officer: No, I get that, I?m saying do you have anything illegal on you.
Client: I said no, Sir.
Officer: And I said are you positive about that.
Client: I said no, Sir.
Officer: So you don?t know if you have something illegal or not?
Officer: You mind if I check?
Officer: Come on over here.
Would you feel free to ignore the officer or would you feel as though you are being command to walk over to the officer and talk to him?
What the law says?
Courts say that there is no bright-line rule to determine when an encounter with the police turns from voluntary to involuntary. ?Instead,?courts look at the totality of the circumstances surrounding the interaction to determine?whether a reasonable person would have felt free to ignore the police officer’s request or terminate the encounter. ?Do you find that helpful?
Judge’s review the facts in the case based on the time, place and content of the conversation. ?That means that it is almost impossible to say how a Judge will second guess your decision to agree to talk to the police or ignore them. ?The Texas Court of Criminal Appeals has said that a police officer’s asking questions and requesting consent to search do not alone render an encounter a detention but that?ONLY when an officer conveys a message that compliance is required does a consensual encounter become a detention. ?Judges have decided differently as to whether or not an officer telling someone to come here is a command or a request.
What to remember?
If you don’t want to interact with the police,?ASK IF YOU ARE FREE TO LEAVE.
Detentions and Traffic Stops
Most people who are detained by the police are being detained for a traffic violation however the principles apply to anytime the police stop you and you are not free to leave. ?If you are not free to leave then the law says you are being seized by the police. ?So the polices actions are evaluated against your protections under the 4th amendment from unreasonable seizures. ?So what is reasonable and what is unreasonable? ?The law library is full of courts providing explanations and examples.
Courts view being temporarily detained differently then being arrested. ?For the police to justifying detaining someone, they must have reasonable suspicion based on articulable facts that a crime has occurred or is occurring. ? Being arrested requires probable cause .
So what is reasonable suspicion?
Much like the discussion above regarding consensual encounters, there isn’t a real definition of what is reasonable suspicion. ?Court look at each case and set of facts separately. ?So we can look to past decisions to help guess at what is and what is not reasonable suspicion.
Reasonable suspicion requires more than suspicion or hunch. ? It also can’t be solely based on you being nervous or refusal to cooperate with the police. ? In fact, the Supreme Court has said that most citizens with nothing to hide are understandably nervous when interacting with the police. ?Other prior court decisions:
High Crime Area ??Reasonable Suspicion
Your location alone is insufficient.
Furtive Movement ??Reasonable Suspicion
Furtive is a fancy term the police love to use. Furtive means?attempting to avoid notice or attention. ?What the police are saying that it looks like you are trying to hide something.
?Ignoring the Police ??Reasonable Suspicion
Nothing wrong with refusing to talk to the police. REMEMBER TO ASK IF YOU ARE FREE TO LEAVE.
The Bad News
Start combing any of the above and it starts getting closer and closer to reasonable suspicion. ?In fact,?reasonable suspicion may exist even where the conduct of the person detained is as consistent with innocent activity as with criminal activity. ?This means that you don’t have to be doing anything illegal to be detained. ?You don’t have to actually be speeding to be stopped for speeding if the police can explain that their belief that you were speeding was based on more than suspicion or hunch.
The law does not care as to the real reason a police officer stopped you as long as the police officer has a legal basis for stopping you. ?That means that profiling is legal as long as the profiling is coupled with reasonable suspicion of criminal activity.
Real Life Example of an Illegal Traffic Stop
A former client was facing high level felony drug possession charges after drugs where found in his car following a traffic stop. ?In the offense report the police officer wrote that the car was stopped because ?the rear reflectors to be blacked out with an alternate to reduce visibility from factor standard which is a violation of law (defective equipment ? blacked out head/tail lights)?. ?It was true that the car?did have tinted tail?lights, the car should not have been able to pass the state inspection because of the reduced visibility and that the traffic code says that any violation of state inspection is also a traffic offense. ?So the officer, DPS and even the District Attorney’s office believed that it was a violation of the law . ? This all changed and the client’s case was dismissed once Reese proved them wrong.
Traffic Stop Gone Bad
A perfectly legal traffic stop can easily turn into an illegal detention. ?Why? ?Because if the police stop you for speeding, they can’t start investigating you for drug possession without a reason.
What the Police?Can Do?During a Traffic Stop
Ask for your Driver’s license.
Ask for your proof of financial responsibility.
Ask for proof of your vehicle’s registration.
Check to see if you have any open warrants for your arrested.
Police can ask unrelated questions as long as it doesn’t prolong the stop.
Police can detain you as long as it takes to do the above and write you a citation.
What the Police?CANNOT?Do?During a Traffic Stop
Police cannot detain you any longer than is necessary to accomplish the above without providing additional reasonable suspicion for the prolonged detention.
The?4th amendment?states that it is
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue,?but upon probable cause, supported by oath or affirmation, and?particularly describing the place to be searched, and the persons or things to be seized.
The two most common mistakes the police make with a search warrant?are:
- Insufficient Investigation
The constitution requires that the warrant be based upon?probable cause. ?There is a library full of court decisions on what is and what is not probable cause . ?Court’s say that??probable cause? for a search warrant exists if, under the totality of the circumstances presented to the magistrate, there is at least a fair probability or substantial chance that contraband or evidence of a crime will be found at the specified location?. ?The totality of the circumstances just as in the above decisions, are determined on a case by case basis.
The constitution requires the warrant?particularly describe the place to be searched, and the persons or things to be seized. ?Many times the search becomes illegal simply because the wrong name or address is written in the warrant.
The law says that any search of an individual without a warrant is unlawful?BUT?then the law lists a bunch of exceptions when the police can conduct a warrantless search.
When can the police do search without a warrant?
Warrantless Search of a Person
The police can pat you down for weapons IF they can?reasonable suspicion??that you may be armed?and?are presently dangerous. ?Then while patting you down, if they feel something that based on their training and experience leads them to believe is illegal contraband (drugs), then they can go in into your pockets. ?The police can also search you after you have been arrested. ?Note that you can be arrested for anything other than speeding and open container in Texas. ?So the police can arrest you for a traffic violation for the sole purpose of getting to each you.
Warrantless Search of a Car
The same requirement for probable cause applies to searching your car as it does your home. ?HOWEVER, unlike your home, the police do not need a search warrant to search your vehicle. ?Normally this probable cause is based on the police saying that they saw something illegal in your car. ?Examples include officers saying that they saw what appeared to be drug related such as wrapping paper or unmarked prescription bottles. ?Seeing is also smelling. ?The most common probably cause for searching a car during a traffic stop is the smell of burnt marijuana. ?If the police say they smell weed, they can now search your car. ?No probably cause? No problem. ?The police can’t search your vehicle just because they arrested you in the same way they can search your person. ?BUT what they can do is a vehicle inventory after they have arrested you during a traffic stop. ?What is a vehicle inventory and how is it different than a search? ?Since the police are here to serve and protect, they need to do a vehicle inventory to ensure nothing valuable is stolen from you while they have your vehicle towed. ?Anything illegal found during the inventory can be used against you.
Warrantless Search of a Home
A search of your home cannot be done without a warrant so much like the vehicle inventory from above, its important that they police call it something else. ?Thankfully, courts are very protective of our homes. ?One of the rare exceptions of going into someone’s home without a warrant is when the police can explain exigent circumstances. ? Exigent circumstances are when the police can describe a situation when there is no time to get a search warrant. ?With the advancement of technology such as the ability to fax and email a search warrant to a Judge, these type of situations rarely exist. ?Now the police tend to be limited to an emergency such as when they believe that life is in danger.
The police can always conduct a search when you agree to let them.