Feb 042019

By a Philadelphia Criminal Attorney

Many Philadelphia residents and out of town residents get pulled over in their cars while driving in Philadelphia and the surrounding counties, like Delaware County, Montgomery County or Chester County. Law enforcement including local police, state police or federal agents often search the car for evidence of drug use/dealing and evidence of other contraband like guns. Visit our Drugs/Guns Criminal Law page for more info.

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Consent searches are very common, i.e., an officer asks a driver for permission to search their vehicle during a traffic stop. Oftentimes, drivers comply and give consent. When given consent to search, an officer can search any part of the vehicle which could contain whatever item gave rise to the officer’s suspicion. For instance, an officer smells marijuana in the car and the driver consents to search. The officer is allowed to search any part of the car that could reasonably contain marijuana or related drug paraphernalia (like a pipe). However, the officer couldn’t search a small, flat envelope in the back seat because it obviously couldn’t contain marijuana or any item related to smoking marijuana. Read more about car searches and consent.

Consent searches during a routine traffic stop are very common. What happens when an officer conducts a routine traffic stop, tells the driver they are free to go, but then asks to search the car? A recent Pennsylvania Supreme Court ruling clarifies this very issue.

Consent to Search After Driver is Told They are Free to Go

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Philadelphia criminal attorney David Nenner speaks with reporters. Nov. 29, 2017 *Photo credit – Philly.com

In the October 2018 case of In the Int. of A.A., the issue was whether the driver gave consent to search after the police officer told her that she was free to go.

In the case, the driver was pulled over for driving violation. The police officer witnessed a traffic violation and then ran the vehicle’s registration, which was expired. The police officer then stopped the vehicle. The driver was unable to produce car insurance info, so the officer began preparing a citation for the expired registration and a warning for the failure to provide car insurance info.

The officer stated he noticed the following during the initial stop: the driver seemed sluggish, there were furtive movements in the car, and the smell of marijuana in the car. Despite these facts, the officer issued the citation and warning and then told the driver she was free to go.

Before the driver left, the officer asked her if there was anything illegal in her car, and the driver told the officer he could search the car if he wanted. The driver then admitted that she had a marijuana pipe in the car and that she had smoked prior to driving. The officer asked the driver to step out of the car when he saw a green pill on the driver’s seat. At this point, the officer searched the car and found a marijuana pipe and a pill bottle. The driver was given a field sobriety test which she failed. She was arrested and charged with a DUI, Possession of a Controlled Substance, and other charges. She was found delinquent and appealed the search of the car.

In her appeal, she argued that after she was told she was free to go, the officer conducted a second seizure which required additional facts to support the belief that a crime had been committed. Here, the officer noticed the smell of marijuana and the driver’s sluggishness BEFORE he told her she was free to go. Therefore, when he re-engaged her after telling her she was free to go, he needed additional facts to support that second re-engagement (or second seizure).

The Pennsylvania Supreme Court disagreed and found that the officer’s observations of criminal activity (sluggish driver, furtive movements and smell of marijuana) during the entire event justified further engagement. Telling the driver she was free to go didn’t negate the observations and the officer was justified in asking if she had anything illegal in her car. Because she told the officer he could search her car, she consented to the search. The pill and pipe were therefore, legally seized based on the consent.

What the recent consent search case tells us is that officers can prolong a car/traffic stop if there’s evidence that shows criminal activity, like the smell of drugs or any acts of the driver that suggest impairment/DUI. This is true even if the officer tells the driver he or she is free to go.

It’s important to note that search and seizure law, especially when it comes to car searches, is very complex and always depends on the facts of a given case. Visit the Philadelphia Criminal Drug/Gun Possession Law Library.

If you were arrested after a car search and believe your constitutional rights were violated, contact our criminal defense law firm for a free case evaluation at (215) 564-0644. Firm founder David S. Nenner has over 30 years of experience in criminal law and is a top rated criminal lawyer.