One of the questions I am asked most often is “What rights do I have when I am stopped by a police officer and he would like to search me or my car?”
And with recent controversy surrounding Texas law enforcement performing roadside cavity searches on the mere suspicion of marijuana, being aware of your rights and proper search parameters is more important than ever.
Few public policies pose as great a threat to our fundamental civil liberties as the war on drugs. Since the 1970s, the U.S. judicial system has created a “drug exception” to the Constitution by permitting the erosion of our constitutional rights in the name of drug prohibition. Additionally, misguided drug policies have resulted in extensive discrimination against marijuana users and those suspected of being marijuana users.
Under Texas law, an officer may search your vehicle during a stop if they:
(1) have a valid search warrant signed by a magistrate,
(2) you consent to the vehicle search or
(3) the officer has probable cause to believe there is contraband in the vehicle.
An officer can have probable cause to search a vehicle if he can plainly see any contraband in the car (when it is in “plain view”), when the officer has received information that there is contraband in the car from a reliable informant, or if there is a smell of marijuana or other drugs coming from the vehicle. Clark v. State, 548 S.W.2d 888 (Tex.Cr.App. 1977); Harris v. State 486 S.W.2d 88 (Tex.Cr.App. 1972); Isam v. State, 582 S.W.2d 441, 444 (Tex.Cr.App. 1979). If you do choose to consent to a search of your vehicle, officers may only search the areas of the vehicle you have consented to, so be aware of your phrasing if you do not wish to consent to a full-vehicle search.
Many find speaking with a law enforcement officer to be intimidating in itself, even if they have done nothing wrong, making it even more important that you are aware of your rights before you are in this situation. It is important to remember because of the openness and mobility of cars and trucks, your expectation of privacy in a vehicle is considerably less than the amount of privacy you can expect to have in your home. Accordingly, police officers have much less restriction when searching a vehicle than searching a private home, making it very important to understand and protect your constitutional rights during warrantless searches. You have the right to NOT consent to the search and the RIGHT to NOT waive any of your rights with law enforcement.
For more on Texas Marijuana Vehicle Search and Seizure, please see Part II, where I will discuss Texas laws relating to locked compartments, closed containers and inventory searches.
Disclaimer: The information contain on this site and in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from The Gilbert G. Garcia Law Firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. Any and all communications as a results of this Post and/or this Site, is not secure nor confidential. Further, the mere initiation of any contact with The Gilbert G. Garcia Law Firm, staff, lawyer or a message on this post/site does not create an attorney–client relationship.
Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301. www.ggglawfirm.com.
Drug Related Charges may include: Possession of Marijuana, Possession of Controlled Substance, Possession of Dangerous Drug, Manufacturing a Dangerous Drug/Controlled Substance, Delivery or Intent to Deliver Marijuana/Dangerous Drug/Controlled Substance, Possession of Drug Paraphernalia and many other drug related charges.