(Note: This article is not intended to be legal advice and is merely editorial in substance. Should you have questions concerning this subject you should consult your attorney.)

While attending law school I had a professor in Criminal Procedure studies that always referred to the “Human head in the trunk”. The human head in the trunk was actually representative of the obvious illegal article one may have in their trunk when pulled over by the police for any type of stop when you are in a vehicle.

Although the current Supreme Court has significantly broadened the search powers of authorities, we as citizens, still have rights under the Fourth Amendment to the Constitution to protect us. Following are some simple advisory examples that if followed could extensively benefit your attorney should you find yourself in conflict with the law.

John and Dave are driving down the road with the proverbial “Human head in the trunk” of Dave’s car when the flashing lights of a police cruiser appear in the rear view mirror. Their hearts begin to race and their palms become sweaty. Questions of what to do and scenarios of terrible outcomes are flooding their minds. After Dave pulls over, the officer approaches the vehicle and informs the driver that a tail light is out and he is going to issue a citation for a non-moving violation. John and Dave breathe a little easier. Then out of the blue the officer asks if they mind opening their trunk. John is thinking “no way” but Dave answers, “Sure officer, I have nothing to hide”, because he believes that by being cooperative the officer is more likely to just let him go or not search at all.

Needless to say upon opening the trunk the officer spotted the “Human head” and John and Dave were arrested. Their attorney had no basis to object to the search at trial because Dave had consented to the search. Always deny the police a consent search. Remember that 100% of the time if the police have enough reason to search they will get the warrant and if they don’t have the necessary probable cause then merely refusing to allow the search is not enough in itself to create probable cause. Stay calm and refuse the search by simply stating you have a 4th amendment right not to be searched. At least if they do obtain a warrant and conduct the search your attorney may have some legal basis to get the evidence excluded. Once you consent you gave the police a free pass.

So what should you do if you truly do not have anything to hide? Still refuse the search. I have always advised my friends and family to refuse the search simply because we never know everything about our “friends and acquaintances”. In example again John and Dave are driving down the road with nothing in the trunk. They are on the way to a church youth function. Dave has known John for years but what Dave does not know is that John has been under a lot of stress lately. His girlfriend broke up with him, his brother went to jail for drug offenses a month ago and his parents are getting a divorce. Just before Dave picked him up John found a bag of pot in his brother’s room and decided he might try it so he put it in his jacket pocket. Again Dave gets pulled over for a bad tail light. This time John panics and tosses the pot under the seat of the car. Dave, not knowing there was contraband in the car and believing the officer may not write him a ticket lets the police search the vehicle. When they find the pot, John is terrified and denies ever seeing the pot. As owner of the car, Dave is arrested. The police never had probable cause and therefore could only search the car with consent of the owner.

One can normally assume that you should deny a search. Remember, if the police have the evidence they would have already arrested you and if they’re asking, they don’t yet have probable cause.




By: Douglas R. Smith