When Are TX Police Allowed to Search You for a Controlled Substance?

When Are TX Police Allowed to Search You for a Controlled Substance?

A Texas woman was recently pulled over on a routine traffic stop, and a chain of events ended in possession charges.Here are the facts:

  • The woman was pulled over for not using her signal.
  • The officer reported she appeared “very nervous.”
  • He asked if he could search the vehicle.
  • She said yes.
  • During the search, he found contraband and rocks she claimed were “healing crystals.”
  • The rocks were later confirmed as methamphetamine.
  • She was ultimately charged with possession of a controlled substance.

Can you identify mistakes she made that led to her drug possession charges?

If not, don’t worry – you’re not alone. If you’ve been charged with possessing illegal drugs, an experienced Texas defense attorney can determine the proper defense strategy. In the meantime, let’s look at how this woman could have avoided drug possession charges altogether.

It Starts with the Fourth Amendment

When the Fourth Amendment says probable cause, it means police must have adequate reason to 1) arrest someone, 2) conduct a search, or 3) seize property relating to an alleged crime.

Here’s how probable cause specifically relates to each:

The Person to be Arrested

A police officer must use specific factual information that would lead any reasonable person to believe a suspect has committed, is committing, or is about to commit a crime in order to determine probable cause – it is not just “a hunch.”

Note that being “detained” is different from being arrested. An officer may detain you with “reasonable suspicion” – meaning specific facts lead the officer to believe that further investigation is required.

Reasonable suspicion and detentions traverse murky waters, though, and continued police action often triggers a need for probable cause.

The Place to be Searched & Property to be Seized

Fort Worth Drug Charges Defense Lawyer

As with arrest, probable cause must exist that a crime was committed or that evidence of a crime is being kept at the location to be searched. Warrants must detail both location and items to be seized. For situations without a search warrant, one of these must be true:

  1. a) law enforcement had consent from the premises’ owner or charge
  2. b) search must be connected to a lawful arrest
  3. c) a public safety threat exists or evidence could be lost if they do not search or seize

Here’s the thing – you have the right to refuse a search without a warrant. Without a search, it is unlikely that property will be seized. However, there is still a correct way to refuse. A polite, “officer, I do not consent to searches” should do.

Pleading the Fifth… and the Sixth

While there is a lot to unpack in those few lines of the Fourth Amendment, the Fifth and Sixth are fairly straightforward when it comes to arrest, search, and seizure.

Unless you are being detained for some reason, you have the right to leave. Do not wait for the officer to dismiss you. Simply ask if you are free to go as you depart. Again, courtesy speaks volumes.

If you are being detained, again, remain calm and polite, and simply let the officer know you’d like to exercise your Fifth and Sixth Amendment rights to remain silent and only speak with an attorney.

Back to the Texas Woman & Her “Healing Crystals”

Back to the story that started this. Let’s try to identify where things may have gone differently.

The woman’s first mistake was not realizing her power over the situation. If the officer had simply asked her to step out of the vehicle and started searching it, any good attorney would request the case be thrown out based on lack of probable cause.

Because he had none. The officer pulled her over for a routine traffic stop, and his only reasoning for conducting a search seems to be that she appeared “very nervous.” While police may draw conclusions about a citizen’s emotional state, frankly, we don’t know of anyone who isn’t nervous being pulled over by police these days.

However, that’s not what happened. He followed the correct procedure and asked if he could search the car. She could – and should – have said no, but instead she agreed. Had she exercised her rights, the visit could have been terminated there.

Her second mistake occurred when the officer found lighters and a handful of rocks. She claimed they were “healing crystals.” Once the officer found the evidence and she lied about what it was, that could be seen as enough probable cause to detain her for further investigation.

Lying to law enforcement gets you nowhere.

Texas Criminal Defense Attorney

Ultimately, the rocks were confirmed as a controlled substance, she was charged, and now she is likely to face penalties for having a controlled substance on her person. Has she simply exercised her Fourth, Fifth and Sixth Amendment rights, she might have simply gotten a warning to fix that blinker and been on her way.




About the Author:

After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.