Probable cause vs consent in speeding stop
October 28, 2011 8:58 PM   Subscribe

I was pulled over for speeding and the state trooper claimed he smelled marijuana and was going to call out the K9 unit. Ultimately nothing happened, but I have questions about the situation and procedures.

So, I was driving through Indiana, and I was pulled over for doing 74 in a 55. The state trooper who pulled me over came to the passenger's side window, and I rolled it down. He asked if I knew why he had pulled me over, and I said no, and he said I had been doing 74 in a 55 and asked for my license and registration. I gave both to him. He then said that he had "caught a little whiff of marijuana smoke when I rolled down my window," and was going to call out the K9 unit.

I was pretty surprised by this since I have never, ever smoked weed in my life (seriously), nor has anyone else smoked it in my car, which I bought used about 2 years ago. He went back to his car to do his thing, and I prepared to give the "I don't consent to any searches" spiel, but he came back about 5 minutes later, which was much sooner than I expected.

He said that "the K9 unit was busy" and that "the system was down." He asked me if I had ever been arrested (no) or ever gotten into any trouble driving (tickets, accidents, nothing recent). He asked the purpose of my trip and then said that he had "lost the scent" and I was free to go with a warning. This was quite a shock.

Anyway, I have several questions:

1. Why did I just get a warning?
2. Is it likely that he seriously thought he smelled weed? My car is a little musty, but I do know what marijuana smells like, and my car certainly doesn't smell like that.
3. I did a little googling, and it looks like just the claim of smelling marijuana gave him probable cause to search the car. Is that true?
4. Assuming the claim of a smell gave him probable cause, how would that situation play out? Would he just state "I'm searching your car now based on having probable cause" or would he ask my permission? Would I be arrested if I did not give consent?
5. Assuming a search took place, how serious are we talking? Just a cursory car inspection, or a complete teardown?
6. While the vehicle registration was not expired, the one in the glove box was only good through May. Could that have become an issue?

Thanks for any help you can give me. I'm just really curious about this and want to know what to do next time.
posted by Slinga to Law & Government (18 answers total) 3 users marked this as a favorite
Somewhat previously: "The officer needs probable cause to conduct a search, but only needs "reasonable suspicion" to call in the dogs to sniff the exterior of your car. Refusing a search has been held to constitute reasonable suspicion, so that can always happen. If the dog alerts, that is now probable cause for a search. "

It's entirely possible you got a warning because you were polite, it was towards the end of his shift, he felt like it, he had a more interesting call, he was hungry and due for a break, he'd met his quota, whatever. He has very wide scope here.
posted by DarlingBri at 9:14 PM on October 28, 2011 [2 favorites]

I was in a very similar situation in Texas once. Pulled over for going (slightly) above the limit. I wound up getting out of the car and the cop said he thought he smelled either pot or patchouli coming out of the car. Now, I don't see how you could confuse the two, but in either case, the suggestion was so ludicrous that I laughed without thinking.

So I don't really know what was up, but my hypothesis was that it was a standard line to see how I'd react—if I seemed nervous, he'd take that as his cue to search the car. In any case, he dropped it and we actually wound up chatting amiably for a couple minutes. He let me off with a warning.
posted by adamrice at 9:15 PM on October 28, 2011 [4 favorites]

Indiana troopers are famous for pulling over people who are driving through their state and milking every last dollar they can from them. As for the smell thing, though I've never tried it, this is why it's recommended that you only crack your window when a police officer comes to your door to talk; so that in court when it's your word against theirs you have more support when you say it was an illegal search.
posted by villanelles at dawn at 9:16 PM on October 28, 2011

1. Probably just being nice to you since he put you through the scare and trouble when there really wasn't anything there.
2. Yes.
3/4. In all the states I've been. He'd ask you to search. If you were smart you'd say, no. Then, they'd usually call the K-9 unit. If the K-9 unit smells something then they'd rip the car apart.
5. I don't think you'd get a car tear-down for weed unless he went through the trouble of getting search warrant.
6. Most likely not. He can look up your valid registration. You should keep valid, current, registration in the car though.
posted by zephyr_words at 9:19 PM on October 28, 2011

I'm not a cop, I have been pulled over and hasseled:
If a cop really, really wants to search your car and can't find a reason, they call for a dog.
When the K9 cop arrives they bang on the outside of the car until the dog touches a paw or nose to the body of the car. At this point the dog has "detected" drugs in your car and they are allowed to search it without consent.
I've experienced this twice. I've never had anything in the vehicle to find, so I don't know how this method holds up in court.
posted by gally99 at 9:21 PM on October 28, 2011 [3 favorites]

He could also have been bluffing to see your reaction. If you gave what he considered a guilty reaction, then he might have progressed to calling in the dogs etc. I suspect the honest confusion on your face was pretty obvious so he took it no further. Or any of the above reasons too.
posted by wwax at 9:28 PM on October 28, 2011

I think the linked comment about reasonable suspicion is wrong.

It's worth keeping in mind that the remedy for an illegal search is only exclusion of evidence.

Generally, the greater the intrusion, the more the cops need (like tearing your car apart or arresting you).
posted by J. Wilson at 9:30 PM on October 28, 2011

Maybe you looked rich and mistrustful of banks, like a smuggler of some kind, or someone else inclined to carry a large amount of cash for a moment and then didn't look like it was worth waiting for the dogs to be free? This has been a scandal in Tennessee but happens in a lot of places
posted by Blasdelb at 9:44 PM on October 28, 2011

Personally, I think the cop was fibbing -- not in the sense that he lied about smelling pot, which is the routine part, and which is entirely legal for him to do, but in the sense that he was "sweating" you while he waited to find out if you had a driving record or any warrants for which he could arrest you. He probably pulled you over in the first place not really because you were speeding or speeding that much, but mainly because you had a look about you and your car that he felt was likely to be somebody he could reel in. It happens, and you'll hardly ever be able to prove otherwise.

Basically, he was telling you he was going to search, and then he went back to his vehicle, quite possibly hoping you would panic and try to destroy/toss any contraband, or flee, giving him every excuse he would need to arrest you and conduct a full, warrantless search of the vehicle (under current Supreme Court case law as of 2009). That's my reading of this narrative you've given us, anyway.

Setting that aside, K-9 searches -- had one actually occurred -- are a different ball of wax. This is 2011 advice in a professional police publication (keep in mind that state law, including case law, can vary this by slight amounts, as well as case law by federal district to a certain extent). Since it is essentially 100% legal for them to conduct a K-9 once-around of a stopped vehicle, many departments try to do it routinely.

It's also important to know that K-9 dogs need constant training to keep their skills acute. This is another reason they deploy them as frequently as possible. This is quite separate from the question of whether they're hinky cops that would fake a "hit" in order to conduct a more thorough search. Thus, standard procedure would be for a K-9 unit to respond as a secondary to any traffic stop within range. If the dog is busy doing something else, they have no reason to hold you unless they really want to write a real ticket for whatever they stopped you for.
posted by dhartung at 10:23 PM on October 28, 2011 [2 favorites]

I'm pretty unassuming-looking and have a clean record, yet have had a couple of instances where cops felt it necessary to pull out the borderline-creepy insinuations. I dunno, but it happens, and I've never had any weird ramifications afterward.
posted by desuetude at 10:30 PM on October 28, 2011

I think the linked comment about reasonable suspicion is wrong.
It is both right and wrong. It is incorrect that refusing a search creates "reasonable suspicion" according to the Supreme Court in United States v. Fuentes. However, having dogs smell the exterior of your car is not considered a "search" -- they can generally use dogs to smell the outside of a car any time they want. The constraint is that they cannot "unduly prolong" a traffic stop to enable the search. This is, as you might imagine, the subject of much back and forth in the courts. Saying he smelled weed was most likely an attempt to draw you into some kind of incriminating reaction or comment. Although it is potentially a basis for a legal search, its potential for abuse is so obvious that searches are not usually done on that claim alone.
posted by Lame_username at 1:35 AM on October 29, 2011

He's an Indiana State Trooper, aka a bully and a shakedown artist.
posted by spitbull at 2:53 AM on October 29, 2011 [2 favorites]

He was absolutely testing your reaction.

Most people are terrible liars, and most police deal with liars of all shapes and sizes every single day of their lives and become excellent at spotting the tells someone will subconsciously give that are giant red flags to even the modestly-trained officer. It's rather amazing how consistent human reactions are. You say you've never had weed in your car, and thus your reaction is one of immediate defiance. Oh, you gonna search me? Search away, motherfucker. That's not the normal reaction of someone that's guilty. Someone that's guilty will immediately react with fear followed by argumentativeness. What do you mean, you smell weed? You probably smell my cologne or something…

Since most people aren't interacting with the police on a day-to-day basis, encounters are typically already high-stress. Thus it's very difficult to be conscious of all the subtleties necessary to be a convincing actor playing the part of "Honest, No-Weed Person" if you're not really an honest, no-weed person. The police know this.
posted by Civil_Disobedient at 3:19 AM on October 29, 2011 [2 favorites]

On the registration thing, I got a ticket for that (among other things) that I have to go to court for on the Tuesday. It will get dropped when I show that I have the car registered and just couldn't find the damn paper while I was pulled over and getting made late for my appointment. So not having the registrations might have been an issue. But it's one that will easily go away.

Keep in mind though that I'm in SC and not Indiana. And that my cop was willing to throw out the no insurance ticket as I was pulled over since I found it after he wrote it.
posted by theichibun at 6:34 AM on October 29, 2011

Dhartlung got a point. based on what he said I am wondering if he was told to be on the lookout for a car they could use as training for a k-9 unit.
posted by majortom1981 at 7:29 AM on October 29, 2011

You were being baited.

You got a warning because you either weren't actually going that fast or he didn't have proof. (I.e., the radar wasn't on, etc.) 74 in a 55 is a nice pricey ticket and there's likely no way you get a pass on that unless he was fishing.

Maybe he did or didn't smell weed, but something about your car/driving/look made him suspicious when he saw you go by. Out of state plates, major highway, make of car, etc. Find or make up a reason to pull you over, find or make up a reason to call in a sniffer, maybe he gets lucky and it turns out you're running a trunk full of dope. You can't in his head to say what he smelled, but based on his behavior he was fishing.

You cannot be arrested or cited for not giving consent. You don't have to consent to anything the state does. You cannot, however, interfere with the police officer. The standard phrase around here is "I am not resisting, but I do not consent to this search." If he stepped over the line, let it fall out in court; if you resist or try to block him, you're going to get another few charges which will be considerably harder to beat.

The registration could've become an issue, yes. Anything which gives them a "hook" can be used as a reason to dig deeper.
posted by introp at 9:09 AM on October 29, 2011 [1 favorite]

The link above was for immigration-related stops: here is more general advice from the aclu
posted by lalochezia at 10:51 AM on October 29, 2011 [2 favorites]

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