Written Consent to Search Your Car Is Out the Window

Beginning in August of 2012, Austin Police will be required to seek written consent to search vehicles during traffic stops, announced APD Chief Art Acevedo on July 24, 2012.  Accordingly, anytime you are pulled over by an Austin Police Officer and they wish to search your vehicle, they first must seek your written consent. Essentially, if you agree to a search of your vehicle, the officer will give you a piece of paper to sign reflecting your acquiescence.  This new APD policy occurs in the wake of the APD Monitor’s report from earlier in the month that cited discrimination and other shortcomings in the often-criticized department.  Requesting written consent supposedly will help cure the infractions noted by the Monitor.  Without addressing that point specifically, this is a good moment to refresh everyone’s mind on basic search and seizure law and remind us what rights we have inside our vehicles.

First, you must understand that requesting written consent is not required by law for the police to conduct a search of your vehicle.  Do not be surprised if you’re stopped, particularly by a different agency such as DPS or Travis County Sheriff’s Office, and the officer does not request written consent.  Further, just because you do not provide written consent does not mean that APD will not search your vehicle.  They simply have to ask.  I believe there will be cases where your refusal to provide written consent will be used as part of the police officer’s probable cause determination necessary to search your car.  Also, I can forsee many situations in which you may provide written consent for the search, and the search could still be illegal.  Foreign language speakers, persons who do not have the capacity to understand what they’re signing, illiterate persons, and persons coerced or forced to sign under duress by the police officers, would all be examples of cases where although written consent appears to be obtained, it is still invalid.

The bottom line here is that the police must have probable cause to conduct a search of a place where a person enjoys a reasonable expectation of privacy.  Your vehicle and your belongings therein are protected by the 4th Amendment of the US Constitution.  The Texas Court of Criminal Appeals has found probable cause exists if, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place at the time of the search.  This is obviously a very broad definition and subject to individual interpretations.  However, the searching officer must be able to describe facts that create this “fair probability” under the totality of the circumstances.  As an aside, the law holds that running a K9 or dog sniff on the outside of your car is not a search.  However, if the dog “hits” or alerts on your vehicle, this could create probable cause for your vehicle to be searched.  The police do not need a warrant to search your vehicle like they do your home.  If the police determine probable cause exists, then they will search your vehicle.  This “warrant exception” is justified by the courts because of a vehicle’s nature of being mobile and capable of being in one location during the present, and somewhere distant in the future.  A police officer’s determination of probable cause can, and should be challenged in court.  It is common for searches to be found invalid due to the officer lacking probable cause.  Once the search is determined to be unlawful, any evidence derived from the illegal search is suppressed and cannot be used against you.  APD seeks to reduce this occurrence by obtaining your written consent.  If the officer lacks probable cause to search your vehicle, but obtains your written consent, then you are at a strong disadvantage to come to court later and argue that the search was unlawful.  This is because once you provide consent, probable cause is out the window (so to speak) and no longer needed for the search.

Finally, you should never provide any form of consent to a search of your vehicle (or anything else for that matter).  Trust me, if the police believe they can search your vehicle without your consent, they will.  If they do not have probable cause to search, then the only way for them to get into your car is through your consent.  If you have been arrested as the result of a traffic stop, then you need a knowledgeable and experienced attorney to look at the facts of your case to determine what issues exist in hopes of winning.  Most traffic stops are also recorded on the police in-car video system and audio recorded.

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