Auto Searches - Constructive Possession

You hear the siren. You see the flashing lights. You may not have even done anything wrong, but your mind starts racing and your palms are sweaty. It’s important if you get pulled over to remain calm and polite – and remember your rights.

Generally, police need a warrant to search you or your property. However, during a traffic stop, law enforcement officers need only probable cause to legally search your vehicle. Auto searches can’t simply be initiated on a “hunch.” There must be some evidence of reasonable suspicion that illegal activity occurred or is about to occur.

Minor traffic infractions, such as a broken tail light, expired registration or speeding a few miles-per-hour over the limit, are not considered probable cause to search a vehicle. Probable cause means the facts and circumstances known to the officer establish the basis for a reasonable person to believe a crime was committed at the place to be search, or that evidence of a crime exists in that location.

The exception to the requirement that police first get a warrant before searching your person or property is predicated on the legal notion that you have a reduced expectation of privacy. But in your vehicle, your expectation of privacy is not the same as it is in your home. That’s because your vehicle is operated on public roads. It’s also considered easier for people to hide or destroy evidence in a moving vehicle. This is called the “automobile exception.”

There are some states that require law enforcement officers to show they didn’t have time to get a warrant before searching a vehicle. Florida is not one of those states. In one Florida case weighed by the U.S. Supreme Court, police conducted a warrantless search on a vehicle that had been in police custody for three days before the search. The court ruled the search was within legal bounds.

It’s important to point out that if you give consent to a search, the officer will be allowed to search and you will have no recourse later to challenge that search or to suppress the findings. That’s why it’s better to politely – but firmly – decline to allow a search. The search might still happen. But you can challenge it later.

Bear in mind that in many cases a “request” to search from an officer can sound like a command. For example, “You don’t mind if I search your car, do you?” It’s technically a request, but the officer’s inflection and tone can make it sound like you don’t have a choice. You do.

There is an issue that commonly arises in motor vehicle searches, primarily from illegal possession of weapons or drugs, and that is “constructive possession.”

Constructive possession occurs when you do not have actual physical possession of an illicit drug or weapon, but you do have both:

• Knowledge about the drug’s presence on or about your property;
• The ability to maintain control/ dominion over it.

Constructive possession may be sole or joint. That means one person could be charged with constructive possession of contraband, or multiple people could be charged with constructive possession, even when no one person had it on their physical person. For example, there is a bag of cocaine in the glove box of the car. The police could assert constructive possession, and charge the driver and the front seat passenger with unlawful possession of a controlled substance.

Understandably, many people aren’t prepared for the pressure and confusion that occurs in an actual police encounter. It’s imperative to:

• Remain calm and cool – and respectful.

• Stay silent. What you don’t say can’t hurt you. Rather than asserting that you understand your rights, stay quiet.

• Assert your right to refuse search requests. If the officer asks to search you or the vehicle, make it clear that you refuse consent. Say you are not resisting, but you do not consent. If the officer presses you, simply respond you know the officer is doing his or her job, but you do not consent to searches. You may be searched anyway, but know you’ll have grounds to challenge the findings of that search.

• Ask if you’re free to go. Unless you are being detained or arrested, you can end the encounter at any time. But you shouldn’t wait for the officer to dismiss you. You can ask if you’re free to go.

• Ask for an attorney. If you are not free to go, you are either being detained or arrested. At that point, it’s imperative that you make it clear you will remain silent until speaking to an attorney.

Contact Fort Lauderale criminal defense lawyers at The Ansara Law Firm by calling (954) 761-4011 or send us an email. We serve clients in Broward, Palm Beach and Miami-Dade Counties.