Younger brother got pulled over

[Deric]

I'm just curious about consent to search.

My youngest brother just told me he got pulled over for speeding (cant tell the parents cause he is already in the hole for his grades... Ahhh to be a kid again) He knows he was speeding and took responsibility for it. No problems with that part of it at all. But, he said the officer had him exit the vehicle and then searched his car for illegal substances. He said the officers reason for the search was the fact that "the car smelled strongly of air freshener"

My question is: is that considered probable cause nowadays? I mean, yes, a guy could cover the smell of drugs or alcohol, but really? A car smelling like a car freshener is enough to have your personal property searched? I thought a stronger case was required.

I know a search isn't a big deal if you have nothing to hide, but why be forced to deal with the hassle? Is this a situation where he could have said no to the search and gone on with his day? .

 

[Lt. ZO6]

There are three sides to every story.

That being said, if what you indicate is exactly what happened, then the mere odor of an air freshener would not hold up in court as probable cause for a search.

As far as preventing an officer from conducting a search... If the officer believes he/she has probable cause, then let them search. The courts will determine if it was valid or not. Trying to stop a search in progress can result in one really having a bad day.

 

[R.D.P.]

There are three sides to every story.

That being said, if what you indicate is exactly what happened, then the mere odor of an air freshener would not hold up in court as probable cause for a search.

As far as preventing an officer from conducting a search... If the officer believes he/she has probable cause, then let them search. The courts will determine if it was valid or not. Trying to stop a search in progress can result in one really having a bad day.

But what if he told the officer "no, you do not have my consent to search my vehicle" before the officer began the search? Can the officer proceed with the search in that scenario? I've never understood how this works.

 

[Deric]

^ Yeah I'm curious how that works as well. I understand probable cause gives them the grounds to search. But I assumed probable cause was SEEING something in plain view or blatant odors/behaviors. Which is how it should be.

But, classifying the smell of an air freshener as probable cause kind of says to me- all that is needed for probable cause is the officers desire to search. Almost as if one can make up a reason and call it probable cause..

 

[Zinc03Cobra]

are we talking one air freshner or like a felony forest of air freshners? There is a difference... all kidding aside...

Perhaps this is a question best asked to the department that stopped your brother. Everyone here is going to speculate, and what you really want is a good solid answer from the source. good luck!

 

[TBCobra]

There are three sides to every story.

That being said, if what you indicate is exactly what happened, then the mere odor of an air freshener would not hold up in court as probable cause for a search.

As far as preventing an officer from conducting a search... If the officer believes he/she has probable cause, then let them search. The courts will determine if it was valid or not. Trying to stop a search in progress can result in one really having a bad day.

Yes, listen to this guy. Give up your right 4th Amendment right and hope that the courts do the right thing. lol

 

[wesessiah]

But what if he told the officer "no, you do not have my consent to search my vehicle" before the officer began the search? Can the officer proceed with the search in that scenario? I've never understood how this works.

you can limit a consent search in any way you see fit.
officer: do you mind if i search your vehicle?
driver: i don't mind at all, but don't search in my glove compartment or center console.
the officers leans into the vehicle to search...
driver: i no longer consent to any search of my vehicle.
officer: ok.
in a probable cause/warrant search there is no denying or limiting.

Yes, listen to this guy. Give up your right 4th Amendment right and hope that the courts do the right thing. lol

as opposed to fighting the officer because he doesn't believe the officer has probable cause to search, while the officer does and then hoping the courts do the right thing? you make it known you are not consenting to the search, but not resisting. as an officer in the situation i would state "i'm not going to actively or passively resist, but i'm not consenting because i believe this to be an unlawful search." if an officer believes he has probable cause to search a vehicle and he ends up not searching because the driver says no, then he shouldn't be an officer. why would you actively go out of your way to make the situation worse? if you're being unlawfully arrested through some mistake, do you also think you should fight and risk someone getting hurt or killed? use common sense and don't make a situation worse on principle.

 

[TBCobra]

^ What the hell are you saying? Im not advocating hurting anyone. All I am saying is if an officer smells air fresheners in my car and then says I want to search your car because it smells like air freshens I am going to say no. If he decides it is reason enough for him to search and he is going to do it anyway I will let him do it and then take it up with the courts. Why have rights if we arent going to use them?

What if an officer says I smell farts in your car, I need to search your car because you may be trying to hide the scent of marijuana? It's just a little ridiculous to me.

 

[wesessiah]

^ What the hell are you saying? Im not advocating hurting anyone. All I am saying is if an officer smells air fresheners in my car and then says I want to search your car because it smells like air freshens I am going to say no. If he decides it is reason enough for him to search and he is going to do it anyway I will let him do it and then take it up with the courts. Why have rights if we arent going to use them?

What if an officer says I smell farts in your car, I need to search your car because you may be trying to hide the scent of marijuana? It's just a little ridiculous to me.

the lt. stated "As far as preventing an officer from conducting a search... If the officer believes he/she has probable cause, then let them search" nothing along the lines of always consenting. so i took your post to his as saying to obstruct an officer who believes he has probable cause (whether he does or doesn't.)

 

[TBCobra]

Okay I understand. No I was not saying he should physically stop the officer from searching his car but my personal opinion is that the officer smelling air fresheners is not probable cause to search a car. But again, if the officer says it is and does a search anyways his brother would then have to take it up with the courts.

 

[wesessiah]

we agree then, we were just misunderstanding each other.

i'm personally big on staying on the side of caution. i recently had a situation that some would arrest on, but got a warrant anyway. a guy stole an item from a store and left, the store had the license plate of the vehicle he was a passenger in and had him on surveillance well enough to see the clothes he was wearing. paid a visit to the registered owner's house twice (with the second time being 5 hours later) made contact with the owner, who said another guy was in the house in bed. got the guy to get out of bed and he still had the same clothes on from the video. he denied knowing anything about the item, but the driver said there was an item matching that description that the other guy placed into the vehicle, but he didn't know it was stolen and didn't know where it was. so i had the guy from the video still in the same clothing, one party admitting the item was placed into his vehicle by the guy, but i was at his house without the item, and a considerable amount of time had passed. some officers may not agree with my decision, but the magistrate did, and i didn't want to incur any liability for any possible violation, plus i had the guys information. i'm sure people not in law enforcement wouldn't see any issue with him being arrested on the spot, but we do make an effort to observe people's rights, even if some have a looser interpretation of probable cause.

 

[Deric]

Thanks for the input guys. Good stuff to know! Hopefully he can slow down and just avoid it all together next time haha

 

[Lt. ZO6]

Yes, listen to this guy. Give up your right 4th Amendment right and hope that the courts do the right thing. lol

Do you actually think you are going to physically stop an officer from searching your vehicle?

 

[Cowboytk]

Research chimel vs california.

 

[Blackness03]

If you're not in a hurry to go anywhere, just say no. I did. They brought the dogs. Dogs didn't bark (because I don't do drugs), Then I got a window tint ticket. I think if I would have just said yes I never would have got the tint ticket (may be wrong), but either way, I'll take a ticket to stick up for my rights (and to not have all my personal stuff messed with by some stranger)

 

[blackvette101]

If you're not in a hurry to go anywhere, just say no. I did. They brought the dogs. Dogs didn't bark (because I don't do drugs), Then I got a window tint ticket. I think if I would have just said yes I never would have got the tint ticket (may be wrong), but either way, I'll take a ticket to stick up for my rights (and to not have all my personal stuff messed with by some stranger)

+1. I've seen/fixed the results of searches by officers that got frustrated when they could not find something. (ripped down headliner, dashboards removed with the clips ripped out, seat cushions ripped off seat rails) I had one kid with $4k worth of damage to a new jeep SRT8. Of course all these cars smelled like weed even if their was none in the car so I can understand the need to search. But still nobody goes near my cars after seeing that and they are kept immaculate.

 

[jbs$]

Admit to nothing & consent to nothing.

 

[VirtualSVT]

Admit to nothing & consent to nothing.

This.

 

[wesessiah]

Admit to nothing & consent to nothing.

admission is a double edged sword when it comes to officer discretion and traffic stops. i worked with a guy who pulled over an 80 year old woman for blatantly running a stop sign. was going to give her a verbal warning, but she pissed him off by lying and saying she made a complete stop, so he gave her a citation.

 

[Lt. ZO6]

Research chimel vs california.

This case has little relevance with the circumstances described in the OP's post.