I believe that there are two separate issues at play and one is not being discussed as it should. For an officer to stop a person against their will, the Constitution says they need probable cause. But there is this minor word in the Fourth Amendment that many people do not remember. Instead of making all searches forbidden without probable cause or a warrant, the Constitution forbids "unreasonable" searches. In interpreting this term, the SCOTUS has held that the police may stop someone without their permission if there is articulable reason to believe that they are committing or about to commit a crime (for the purposes of this discussion, there are other exceptions written that do not enter into the scenario being discussed).
So, for the police to stop you while driving on I-20 (or any other highway), they must have reason to believe you are committing a crime. Remember that in Texas, unlike some other states, traffic violations are crimes. It is illegal for the police to stop cars at random while they are driving in Texas. So the stop must be based on some traffic violation, even if they do not write a ticket. And I have seen DPS use what I believe to be flimsy reasons for stops, but they are strictly legal. For example, exceeding the posted speed limit by even one mile per hour is a valid reason for a traffic stop (legally, even if I would never do so).
This leads me to the question of what the stop was for. They must be able to tell you why they stopped you. If not, you could legally just drive away (not recommended but truly you can).
But the second half of the question is if the police may search your car. It does not harm anyone or anyone's rights if the police ask anyone for permission to search their car. The police may ask anyone they want to talk with them about anything and may ask anyone they want to waive their rights against unreasonable searches. But, where it crosses the line is if you say no to the search and they do anything to coerce or shame you into allowing it. If you are stopped for speeding and the police ask to search your car, they have the full authority to do so. Just as you have the full authority to say no. And when you say no, the police should say "OK, thank you for your time" and let you go. This is not a problem IMO and may result in more arrests (because as a general rule, criminals are stupid and do dumb things like consent to searches when they are carrying drugs). If I were chief, I would require my officers to have some reason, even if it does not reach the level of reasonable suspicion, to justify their asking, but I do not see a problem with asking for consent.
I do know of one officer who asked every single person he stopped for consent. He had more searches than any other officer on that department. And he had more drug arrests than most of them also. But he did not have as many arrests as one of the senior officers who was very good at determining who was more likely to have drugs and asked for consent rarely but had a near 100% hit rate on his searches.
My advice is to not give consent for a search, just as I do not advise speaking to officers more than necessary after a shooting. But it is just my opinion. I also note that in the real world it is often less trouble to consent or talk than it is to stand on your rights. I have problems with this but I recognize the real world and its implications.
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- by srothstein
- Sun Mar 01, 2015 5:24 pm
- Forum: LEO Contacts & Bloopers
- Topic: Respect our DPS and Troopers
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