Often clients will come to the office with criminal charges that were filed after the police searched an automobile during a traffic stop. On occasion the searches were conducted after the police asked for, and obtained from the client, consent to search the car. Other times the police simply announce they are going to search the client’s car and do so.
After a routine traffic stop if the police ask for consent to search the car the driver should always decline and not allow the police to search, even if the client has nothing to hide. There are numerous reasons for this but the most important reason is that the driver has a right, granted to him or her by the Constitutions of the United States and Pennsylvania, to not agree to allow the police to inconvenience the driver with a time-consuming search. The reality is that if the police ask for consent to search, but do not get it, they cannot search the car AND they cannot impound the car, even if they then tell the driver that they can.
A more difficult case is where the police do not ask for consent to search; they just do it and find something illegal inside the car. When the police decide to search a car without consent during a routine traffic stop the officer must have probable cause to believe that there is something illegal in the car. If the police reasonably believe that they are in danger, or that a safety issue exists, they may conduct a “protective search” of the passenger area of the car if they have reasonable suspicion to believe that the person subject to the stop has a weapon.
In a recent Pennsylvania Superior Court case, the appeals court upheld the suppression of a gun that was found by police during a routine car stop in Philadelphia. The car was stopped because of dark tinting of its windows. The police testified the tinting was so dark they could not see inside the car even using flashlights. They claimed they felt in danger and so they searched the car for protection.
After the car was stopped the police told the driver to open his windows; he did not immediately comply. When the windows were finally lowered the police asked for the usual paperwork. The driver appeared nervous. He opened his center console and immediately showed a surprised look. He closed the console, opened his glove compartment and then retrieved his documents. The police then removed the driver from the car and one of the two officers then searched the center console and found an illegal handgun. The police argued to the Court that they felt in danger and they searched the car only for their own protection.
The Philadelphia court suppressed the gun finding that the police had no reasonable suspicion to believe that there was a weapon in the car based upon simply a delay in opening the windows, a surprised look and alleged nervousness. The Pennsylvania Superior Court, in considering the prosecution’s appeal agreed, finding that dark tinted windows and nervousness alone do not suggest a dangerous situation in which the police can conduct a search of a car. The Court also pointed out that after the windows were open and the driver removed from the car, any danger that may have existed was removed.
The Court wrote, “It is the rare person who is not agitated to some extent when stopped by police, even if the driver is a law-abiding citizen who simply failed to notice or repair a broken taillight or was unaware that he or she was driving above the speed limit. Whether described as nervousness, apprehension, concern or otherwise, forced interaction with a police officer is not an everyday occurrence for the average citizen.”
The police are trained to use people’s anxiousness against them. As the Court noted, almost everyone is nervous when stopped by the police, even if the stop is only for a minor traffic violation. If you are ever stopped by the police, and asked for consent to search your car, do not agree. Also, if the police tell you they will impound your car if you do not agree to give consent to search, do not believe this claim; it is designed to make the driver agree out of fear. While you will feel anxious and nervous, and may even feel that you “have to do what the police ask”, keep in mind that you have protections that are guaranteed by the Constitution, and nobody can take that protection away from you; not even a police officer.