Not Only No, but Hell No: Why You Should Never Give Consent to Search

Drug cases aren’t won at trial. If the police find a pound of marijuana or 28 grams of cocaine in your car, a jury is not likely to let you walk. The police found the drugs in your car; juries and judges convict at trial on those facts.

Drug cases are won at suppression hearings. An experienced criminal defense attorney will file a motion to suppress in every case where physical evidence is found. The judge will set a pre-trial or omnibus hearing date prior to your trial so the motion to suppress can be argued.

If you consent to the police searching your car, the odds of having the drugs suppressed move in an unfavorable direction. If you refuse consent, our chances of winning are greatly improved.

Despite what they may try to tell you, the police can’t search your car just because they’ve pulled you over for a traffic offense. In fact, unless they’ve developed reasonable suspicion that criminal activity is afoot, they have a duty to write you a ticket or give you a warning, return your license and registration, and let you go about your business.

In Arkansas, reasonable suspicion means a suspicion based on facts or circumstances that don’t constitute the probable cause necessary to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to imaginary or purely conjectural.

If the police have developed reasonable suspicion, they may hold you for up to fifteen minutes while they investigate. The facts considered in Arkansas when determining whether a reasonable suspicion exists are:

(1) The demeanor of the suspect;

(2) The gait and manner of the suspect;

(3) Any knowledge the officer may have of the suspect’s background or character;

(4) Whether the suspect is carrying anything, and what he or she is carrying;

(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors;

(6) The time of the day or night the suspect is observed;

(7) Any overheard conversation of the suspect;

(8) The particular streets and areas involved,

(9) Any information received from third persons, whether they are known or unknown;

(10) Whether the suspect is consorting with others whose conduct is reasonably suspected;

(11) The suspect’s proximity to known criminal conduct;

(12) Incidence of crime in the immediate neighborhood;

(13) The suspect’s apparent effort to conceal an article; and

(14) The apparent effort of the suspect to avoid identification or confrontation by a law enforcement officer.

Where the police lack reasonable suspicion to detain you after the legitimate purpose for the traffic stop ends, they must let you leave. If they do not, they’ve unlawfully detained you. Evidence seized after legitimate purpose for the stop ended may be suppressed.

The police will almost always ask you for your consent to search your car prior to the legitimate purpose for the traffic stop ending, that is, they will ask for consent before they give you your ticket or warning. They’ll insinuate that you have to let them search, that they’ll call the k-9, that you refusing gives them grounds to search, and a long list of other tricks to get you to let them search your car.

Don’t ever give your consent. As soon as you do, most of our arguments in favor of suppressing the evidence are lost. They may call the k-9, they may get a warrant, they may search anyway, but, if they’re asking you’re permission, they probably don’t have the reasonable suspicion or probable cause needed for them to do those things. If they did, why would they ask your permission? That’s not how the police operate.

Stand your ground. Always refuse consent. They may search anyway but we have a lot more options and a much better shot at winning your case where you refuse.

Constructive Possession in Arkansas: "It must've been the weed fairy."

In Arkansas, many innocent citizens have been, and many more will be, arrested when a car in which they are a passenger is stopped for a minor traffic violation and subsequently searched. In a substantial number of these encounters, the officer will have no probable cause to search the vehicle. He’ll request the driver’s consent to search, and the driver will give it.

Often, this “request” will sound and feel like a demand; it may be a branch in a compound question: “You don’t have anything illegal in the car do you? Mind if I take a look?”

The proper answer to that question is, “Officer, I don’t consent to any searches. Am I being detained or am I free to go?”

When you find yourself arrested and charged as a result of drugs being found in the car in which you were a passenger, unless they were on your person, your charges stem from the theory of “constructive possession.”

In Arkansas, the Supreme Court has consistently held that it is not necessary for the State to prove that you had actual physical possession of the drugs. Possession can be implied when the drugs are found in a place that is immediately and exclusively accessible to you and “subject to your dominion and control.” If the State can prove that you had care, control and management over the contraband, you may be found guilty of possession under the constructive possession theory.

However, where evidence of possession is purely circumstantial, as it is where you are simply a passenger in the car where the drugs are found, the State needs more to establish possession. There must be some additional factor beyond your mere presence to link you to the contraband. In fact, there must be some evidence that you had knowledge of the presence of the controlled substance in the vehicle.

If the contraband is in plain view, or plain smell, the State will have the proof it needs to show you had knowledge of the presence of the contraband. Your presence coupled with knowledge of the drug’s presence is enough for a judge or jury to find you guilty in Arkansas.

In sum, you don’t have to be holding it to be found guilty of possession; if you can see it or smell it, you know it’s there. Never consent to a search and remind your friends: “Officer, I don’t consent to any searches. Am I being detained or am I free to go?”

Police Encounters: What Should I do?

The Police Stopped Me: What Should I do?

If you are stopped by the police:

• Stay calm and in control of your words, your emotions, and your body. Don’t get into an argument with the police.
• Remember, anything you say or do can, and almost certainly will, be used against you.
• Do not run. Do not touch any police officer. Do not resist even if you believe you are innocent.
• Do not complain at the scene or tell the police they are wrong.
• Do not make any statements regarding the incident.
• Never, Never, Never consent to any searches.
• Ask for a lawyer immediately if you are arrested.
• Remember officers’ names and badge numbers, if possible.
• Try to find witnesses and politely ask for their names and telephone numbers.
• If you are injured, take photographs of the injuries as soon as possible, but make sure you get medical attention first.

During an encounter with the police, you can protect yourself:

• What you say to the police can and will be used against you, and it can give the police an excuse to arrest you, especially if you are bad-mouthing the officer.
• You do not have to consent to a search of yourself, your car, or your home. If you do consent to a search, it will affect your rights later in court; DO NOT CONSENT! If the police say they have a search warrant, ask to see it.
• Do not interfere with or obstruct the police – you can be arrested for it.
• Politely state, "I do not consent to any searches."

If you are stopped for questioning:

• The police may stop and detain you only if they have a reasonable suspicion you have committed, are committing, or are about to commit a crime.
• You can ask if you are under arrest or free to leave. Politely ask, "Officer, am I being detained or am I free to go?"
• If you are arrested, you have a right to know why.
• Immediately contact your attorney and inform the police you will make no statements without your attorney.
• DO NOT MAKE ANY STATEMENT WITHOUT YOUR ATTORNEY!
• It is not a crime to refuse to answer questions, although it is a crime to refuse to identify yourself and produce proof of your identity.
• If police reasonably suspect you pose a danger to them or others, they may conduct a frisk and “pat down” your outer clothing. Do not physically resist, but make it clear you do not consent to any further searching.

If you are stopped in your car:

• Upon request, show the police your driver’s license and proof of insurance. In certain cases your car can be searched without a warrant. However, to protect yourself you should state you do not consent to a search. It is not lawful for the police to arrest you simply for refusing to consent to a search. Remember, "I do not consent to any searches."
• If you are given a ticket, you should sign it. You can always fight the case later in court.
• If you are suspected of a DWI/DUI, you will be asked to take field sobriety tests and breath alcohol tests. If you fail any of the tests, or if you refuse the tests, you will be arrested and your driver’s license may be taken away. The results of these tests can and will be used against you in court.
• If you are arrested, the police can search you and your car.

If you are contacted at your home:

• If the police knock and ask to enter your home, you do not have to let them in, or even open the door, unless they have a warrant signed by a judge. You don't have to let them in simply because they threaten to get a warrant.
• You do not have to consent to any search of your home. In fact, you should never consent to a search of your home.
• In some emergency situations, offices are allowed to enter and search your home without a warrant and without your consent.
• If you are arrested in your home, the police can search you, the area immediately surrounding you, or anywhere evidence of criminal activity is in plain view.

If you are arrested or taken to a police station:

• You have the right to remain silent and talk to a lawyer before you talk to the police. Tell the police you are exercising those rights and then do so: DON”T SAY ANYTHING!
• Do not tell the police anything except your name, address, and date of birth.
• Do not give any explanations, excuses, or stories. You can assert your defense later with the help of your lawyer.
• Ask to see your lawyer immediately. DON’T SAY ANYTHING without your lawyer.
• Do not talk about the facts of your case over the telephone, at the police station, or jail. Anyone can turn snitch, and they’ll bargain for themselves using information about you!
• Do not make any decisions about your case until you have talked with your lawyer.