Traffic stops can leave the target feeling vulnerable, perhaps even frightened, particularly if there is something he or she would rather police not find.
There are some situations in which police have authority to conduct a search of a vehicle or person without consent, either for their own safety or because they suspect a crime. However, this does not mean you should grant consent.
In fact, our Birmingham drug crime defense lawyers want to drive home the point that by giving consent, you may be forfeiting one of the best opportunities you have to later challenge that search.
While the Fourth Amendment to the U.S. Constitution guarantees protection from unreasonable search and seizure, one major exception to this is consent to search. When you consent, police don't need a warrant or reasonable suspicion or any of those other safeguards that the law would otherwise provide.
In State v. Cherry, reviewed not long ago by the Arkansas Supreme Court, prosecutors challenged the lower court's grant of the defendant's motion to suppress. The circuit court had concluded that officer lacked reasonable suspicion to conduct a pat-down search, and that the defendant had not consented to a search of his clothing.
Prosecutors appealed, but the high court dismissed this appeal, noting that the state was attempting to argue an issue of fact, not a matter of law, and therefore the appeal was improper.
This case arises from a traffic stop that was initiated in mid-December. The arresting officer spotted two mopeds driving past him as he exited a parking lot. He recognized the riders as a couple he had encountered before in several domestic situations. Approximately a week earlier, the officer indicated that he had told the male half he needed to ensure that the mopeds were appropriately registered and licensed.
When the mopeds moved past him that evening, he realized that neither bike had a license on it. He initiated a stop and said the defendant seemed “more nervous than usual,” comparing his demeanor to previous encounters.
Another officer arrived on scene for back-up. The arresting officer asked the defendant if he could pat him down for officer safety. This is where things get questionable. The arresting officer says that the defendant gave verbal consent to check the interior of his pockets. The defendant denies this. The back-up officer says he heard the defendant give consent to a pat-down, but not an interior search of his pockets.
The officer indicated he did not feel a weapon of any kind that would have made him fearful for his safety or necessitated further search. Upon checking the defendant's pocket, he found a packet of methamphetamine.
After this discovery, the defendant revealed he had an outstanding warrant for violation of his parole. The officers also learned that the mopeds had been stolen.
Later, the defendant filed a motion to suppress evidence found in the search.
The circuit court ruled that the defendant was subjected to a pat-down search, despite the fact that the evidence the officers had at the time did not indicate he was a danger to the officers or others. A pat-down search for officer safety doesn't warrant the interior search of clothing if an officer doesn't find any indication of a weapon or any other dangerous object that could be used against officers, the court found.
The judge went on to say that the officer could not absolve himself of failure to adhere to Fourth Amendment protections by using the pretext of officer safety to conduct what essentially amounts to a contraband search.
The state in turn argued that the defendant consented to the search, so the issue of Fourth Amendment protections was moot. However, the court indicated that to say the defendant consented to “what amounts to a pretextual search” would be to “allow consent to swallow the Fourth Amendment.”
On appeal, prosecutors argued that the court erred in finding that consent doesn't satisfy the Fourth Amendment.
However, the state supreme court dismissed prosecutors' appeal, stating that the issue of consent in this case was a factual matter. In Arkansas, the state can only appeal issues that are narrow in scope and involve interpretations of the law.
If you have been arrested for a drug crime in Birmingham, contact Drug Crime Defense Attorney Steven Eversole at (866) 831-5292.