Most vehicle searches by cops are based upon either probable cause or consent. Request for consent to search must be based upon reasonable suspicion by the officer that there may be contraband aboard the vehicle. Absent consent, the police must have probable cause to search. Usually the road to probable cause goes through reasonable suspicion.
Most searches are by permission. In my cynical opinion, based on 30 years of reading offense reports, most reasonable suspicion is articulated after the arrest, when the arresting officer is preparing the report to be forwarded to the prosecutor.
These reports go from credible to incredible to hilarious. Some examples I have seen are as follows:
1.There was a Bible on the seat next to the driver, along with religious literature. In the officer’s experience, this was done to draw suspicion from the driver that drugs might be aboard. (This story, once written in a creative patrolman’s report, spread like wildfire among other police reports until squashed by the Texas appellate courts.)
2. The driver and passenger appeared nervous, or would avoid looking directly at the officer. (This one is in every single report to this day, without fail. Absent other indicia of illegality, it alone is insufficient to sustain a challenged search.) Who isn’tnervous when stopped by a cop?
3. The occupants of the automobile, when interviewed, gave conflicting stories as to where they were headed. (This one is fervently followed by the Texas Department of Public Safety patrolmen. See my earlier post on this website.)
4. My favorite, however, occurred recently in the far northern Texas town of Dalhart. My client was stopped, said the officer, because snow was covering the license plate (the driver had just been through a blizzard). When he approached the car, the officer observed burger wrappings in the vehicle. In his experience, such evidence of food consumption is indicative of the “munchies” caused by marijuana use.
This would indeed be hilarious, except that the client is not amused, and the search must be challenged. This kind of silliness goes on every day in Texas and in other states as well. Cops have been stopping kids since the beginning of the automobile age. A good criminal defense lawyer is essential to the defense of these cases. Stops as absurd as these are overturned every day at the trial court level by good, effective criminal defense attorneys — and a healthy dose of common sense.