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Traffic stop: Can a driver refuse consent to a vehicle search?

The rights of law enforcement to search the vehicle of a motorist in Tennessee are often questioned. Searching a vehicle in a traffic stop is different to searching a home in that a vehicle search may be executed without a search warrant — if there is probable cause. However, drivers may not realize that minor traffic violations such as a faulty taillight or exceeding the speed limit do not constitute probable cause. Only clearly visible signs of contraband or illegal activity — or an admission of guilt — will qualify as probable cause.

Motorists are protected by the 5th and the 4th Amendments. However, drivers may want to be on the lookout for carefully laid traps by officers to get them to consent to searches without warrants. Remaining silent but polite may be the safest way to act. Even though refusing to admit to breaking the law is allowed under the protection of the 5th Amendment to prevent self-incrimination, officers are often devious in the ways they ask questions. Remember that anything the driver says can and will be used against him or her in court, and the fewer questions answered, the better.

Under the protection of the 4th Amendment, a driver can refuse requests to search the vehicle — even without the police informing him or her of that right. Police may order all the occupants out of the car, and they can even do a frisk search on the outside of each person’s clothing if they have reason to suspect the threat of a concealed weapon. However, the driver can politely refuse to give consent to a vehicle search — and he or she should beware of trick questions such as the police asking whether he or she has something to hide. No answer is necessary.

The driver may ask the police officer who carried out the traffic stop whether he or she is free to go, and if law enforcement has reason to detain the individual on suspicion of committing a crime, an arrest may follow. At this time the individual has the right to express a wish to speak to a lawyer. Any questioning or interrogation will then have to take place in the presence of the attorney, who can protect the driver’s rights provided under the Tennessee criminal justice system and throughout and legal proceedings that will follow.

Source: flexyourrights.org, “When can police search your car?,” July 24, 2017

State Bar of Georgia
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