Probable Cause and Traffic Stops
What does it take for a police officer to search you or your car?
What is probable cause?
In Texas, probable cause has a very slippery definition. It’s hard to explain and even harder to outline its boundaries. Basically, probable cause is the amount of details, evidence, or information that a police officer needs to arrest you or search you. Probable cause is so important that it’s ingrained in our Fourth Amendment to the U.S. Constitution. The purpose of that amendment is to protect your privacy. You have a privacy interest that the government recognizes. Don’t give it up easily!
When a police officer tries to determine whether or not she has Probable Cause, she looks at the big picture. If an ordinary person, based on their own observations, would believe that a crime has been committed or is being committed, then this is probable cause!
Police are allowed to draw inferences based on their training and experience. However, this doesn’t allow the police to substitute their complete judgment for the place of a Judge.
How to avoid searches during traffic stops?
All searches without a warrant are presumed to be illegal. However, as I said in a previous post, the Fourth Amendment is sometimes like Swiss Cheese in that it has more holes than cheese. There are many exceptions to the Constitutional requirement that police get a Warrant of Arrest or a Search Warrant.
Traffic Violations, NO CONSENT, and Plain View
First, being pulled over for a tail light out or rolling through a stop sign is not probable cause. These traffic infractions are Class C misdemeanors which give the police reasonable suspicion to stop you or question you. I’ve said this 100 times before. Never give the police permission to search you, your car, or anything at all.
Make the police go and get an arrest warrant or a search warrant. If police lack probable cause during traffic stops, but you give them permission to search, it makes my job impossible. I can’t challenge your case and claim that your rights were violated when you gave consent all along. The principle of consent applies in many areas of criminal law. Maybe no exception is bigger than officers’ next best friend, plain view.
Probable cause can be shown by a variety of factors. First, if an officer smells marijuana in your vehicle, sees a pipe or papers, he will be able to search your car. If an officer smells alcohol on you breath, he may ask you to get out of the car and perform a field sobriety test. These examples are essentially within “Plain View” to the officer. And if something illegal is going on, an officer doesn’t have to turn a blind eye to it. The more suspicious the activities, the more investigation the officer will do. However, since you didn’t give the officer permission to search your car, or draw your blood, he will have to go to a Judge and get a Warrant. Keep your cars clean!
The more facts/evidence/details an officer has to back up their side of the story, the easier it is for a Judge to find probable cause based upon the officer’s sworn statements. Ultimately, when applying for a Search Warrant or Warrant of Arrest, the Judge makes the final decision. It’s important to note that even though this may be the case, Judges often grant Warrants over 90% of the time.
Despite this, people and cars are regularly searched illegally without a Warrant, and without an exception to the Constitutional Warrant requirement. Each case is fact specific because Probable Cause is so slippery to define. One thing is for sure… illegal searches by police can benefit your case greatly. That evidence will also be inadmissible later at a trial.