I was recently reading an article regarding North Carolina Traffic Stops and the process known as 'Consent Searches.' As a Apex Traffic and Criminal Defense Attorney and Holly Springs Traffic and Criminal Defense Attorney, I'm familiar with this practice. The article was regarding the Fayetteville Police Department and how the Fayettevile City Counsel attempted to stop consent searches during North Carolina Traffic Stops, including http://mathesonlawoffice.com/north-carolina-dwi ">North Carolina DWI Stops until an independent body could investigate claims that the Police Department's use of the consent search were disproportionately targeting African-American drivers. The Fayetteville Police Department opposed the attempt by the City Counsel's attempt to but a hold on consent searches (and ultimately got a Judge to sign off on an injunction against the City Counsel's efforts). The Police Chief was quoted as saying that consent searches were an important law enforcement tool. |
Consent searches are where an officer will 'obtain' the consent of a Driver to search their vehicle while the Defendant is being temporarily detained during a traffic stop for the purpose of investigating possible North Carolina Misdemeanor or Felony Violations. I will agree that these consent searches are useful to police in their efforts to arrest people for violating North Carolina Criminal Law, specifically more often then not, North Carolina Drug Laws. My problem with this process is the way in which these 'consents' are obtained.
First, the fact of the matter is, NO ONE is required to consent to a search of their vehicle. There is no punishment involved for not consenting to a search. Additionally, an Officer can only detain someone long enough to complete the purpose of the initial detention; however once they have consent to search, they can extend the temporary detention in order to complete the search. So, without consenting, and without any other purpose to permit an Officer to search the vehicle, the stop must be concluded and the Driver released.
However, with the knowledge that obtaining a consent to search will be the easiest way to permit them a search of the vehicle, an Officer will normally attempt to obtain a consent rather to first securing some probable cause which could permit them to search the vehicle. Unfortunately, instead of simply asking "May I search your vehicle?" Police Officer's have devised clever ways to obtain consents which are just short of unethical in my opinion.
Many of my clients who were charged with having contraband in their vehicle tell me of Officer's using certain sayings which seem to come up often. The most common is, "I'm going to search your vehicle, okay?" Though phrased technically as a question, it comes off a lot more like a statement of fact, and considering the source of the statement, it's easy to understand why a Driver would believe the Officer will be searching the vehicle rather then the fact that they are actually asking permission. Other ways they obtain what they need to search a vehicle includes phrases like "If I search your vehicle, will I find anything?" That statement implies that the Officer is going to search the vehicle, without ever eluding to the fact that consent must first be obtained. Defendant's, concerned that not admitting it upfront could be detrimental admit to the contraband being in the vehicle, at which point, the Officer has probable cause to search. The other one I hear is "If you tell me where it is, I'll only give you a ticket, if I have to search for it and find it, I'm going to arrest you and take you down to booking." Again, with the implication that the Driver would face arrest without admitting the presence of the contraband, most people admit thinking they are helping themselves. The reality is, if the Driver rather elects to not answer any of their questions, the Officer would be unable to obtain their 'consent' and could very well avoid providing the necessary Probable Cause to justify the search.
If you have been charged with a crime that resulted from a search of your person, vehicle and/or home, contact a local North Carolina Criminal Defense Attorney to best assist you with your case.
Disclaimer - Information and advice offered in this article is for informational and educational purposes only and is specific to North Carolina law. The viewing, receipt and/or exchange of information from this article does not constitute an Attorney-Client Relationship. For assistance regarding your particular legal question speak with an Attorney practicing in the field from which your questions derives.
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