When It Is Time to Give Up the Ghost

There comes a time in everyone’s life when you must admit that you are defeated. In the context of a police encounter it is important to know when that moment comes, and what to do. In order to illustrate when, and why it becomes necessary to admit possession, a hypothetical example will be given illustrating the consequences of failing to admit defeat. It is rarely advisable to admit knowingly possessing controlled substances, alcohol, or weapons. However, there are times where it is advisable to admit such possession to a police officers.
The Situation
Donald is driving his car down the highway, when he is pulled over by a police officer for a broken taillight. Donald is nervous as he is in possession of half an ounce of marijuana and he knows his car smells like it. Fearing the worst, Donald stuffs the marijuana in his underwear hoping to hide it if the officer searches the car. The officer approaches the window and ask Donald for his License, and proof of insurance, the officer immediately smells the marijuana and now has probable cause to search the vehicle[1] without a warrant pursuant to “The Auto Exception” doctrine set forth in Carrol[2]. The officer then asks Donald if he has anything illegal in the car. Donald says no. The officer then asks Donald for consent to search the car, Donald says no. The police officer then asks Donald to step out of the car, places him in handcuffs, pats him down. During the pat down the officer misses the marijuana Donald has stashed on his person. The officer then leads Donald to the back of the patrol car and tells him he will begin to search his car for marijuana. Donald protest, but knows in his mind the officer will not find anything as he has hidden it on his person. The officer proceeds to search Donald’s car for marijuana, and ultimately finds a bit of marijuana on the floor of the vehicle that Donald had missed. Evidence secured, the officer returns to Donald and tells him he will be arrested for possession of marijuana[3]. Donald his distraught as he believed he had gotten all of it. The officer then asks Donald if he has any marijuana on him. Donald says no, believing the charge will get worse if he turns over the rest of the marijuana.

This fact pattern closely matches how the average traffic stop would be conducted. Officers may pull you over, and briefly detain you for any traffic infraction, no matter how minor[4]. Once detained in a vehicle, an officer may search the car without a warrant if the officer has probable cause that a crime has been committed[5].  In The Situation, the officer obtained probable cause to search the vehicle when the officer smelled marijuana. The officer now has authority to search anywhere in the vehicle for evidence of the crime for which he has probable cause. Once the officer finds marijuana in the car, Donald is going to jail, and his car will be towed to police impound. Once in police impound, the car will again be searched, without a warrant otherwise known as an “inventory search”[6].

However, in this situation, Donald has made a fatal mistake. Once Donald knew he was going to jail, Donald should have told the officer that he had marijuana on his person. While it seems counterintuitive to be advised to give up evidence, in this situation it is the smartest thing that Donald can do. The reason it is advisable to give up the evidence is because when Donald gets to jail, his Class B misdemeanor marijuana possession charge will become a Class three felony[7]. Tex. Penal Code § 38.11 (d)(1) makes it a Class three felony to “possesses a controlled substance or dangerous drug while in a correctional facility or on property owned, used, or controlled by a correctional facility;”. Thus, when Donald arrives at jail and is searched more extensively, the marijuana that is found will generate a felony charge rather than a simple class B misdemeanor. Donald would be better off giving the marijuana he has on him to the officer, as he will only be given a class B misdemeanor.

While it is rarely advisable to give up evidence to law enforcement; in scenarios where you are already going to jail and still have controlled substances, alcohol, or weapons on your person, it is advisable to tell the officer and turn it over to avoid an enhanced charge.

Written by Hunter White

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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
[1] Razo v. State, 577 S.W.2d 709 (Tex. Crim. App. 1979)

[2] Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925)

[3] Tex. Health & Safety Code § 481.121 (LexisNexis, Lexis Advance through the 2015 regular session, 84th Legislature)

[4] Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996)

[5] Cal. v. Carney, 471 U.S. 386, 105 S. Ct. 2066 (1985)

[6] Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605 (1983)

[7] Tex. Penal Code § 38.11 (LexisNexis, Lexis Advance through the 2015 regular session, 84th Legislature)