“The cops want to search me. What do I do?”

Roberto is driving down State Street at 10:45 pm.   It’s Friday night and he just left his job as a custodian at the local community college.  On his way home, Roberto drove past a few well known bars.  The bars were busy and the police patrol around these bars on Friday nights.

As Roberto pumped the clutch to shift the truck into third gear, red lights appeared behind him.  His heart suddenly raced.  Pressure built in his chest. Instantly numerous thoughts ran ferociously through his mind.  He asked himself, “Did I run a red light; Was I speeding; Will I be deported; What will happen to my family; Why are they targeting me?”

Roberto gradually pulled to the side of the road. Immediately he noticed some movement behind his truck. Then a knock came to the window.  Roberto cracked the window to talk to the stranger.  Roberto could barely make out his badge of shinny bronze.

“Do you know why I pulled you over?” asked the officer.

Roberto responded, “I don’t know, sorry.”

“Your back taillight is out.  Do you have a license and registration?” the officer retorted.

Roberto retrieved his registration from the glove compartment and driver’s privilege card and handed it to the officer.  The officer took them from Roberto and walked back to his car.  Roberto waited several minutes, nervously contemplating what might happen.  Then, Roberto noticed the warning lights go out on the police car.  The officer exited his car and walk towards Roberto’s truck.

What the officer did next surprised him.   But Roberto’s surprise wasn’t that he wouldn’t receive a ticket for a broken taillight.

“Replace that light sometime,” said the officer, to which the officer handed Roberto back his license and registration.  Then the officer asked, “May I search your car?  You don’t have anything illegal do you?”

“What?  I thought I was done?”, Roberto thought to himself.

What would you do?  Would you let the officer search your car?  Is it illegal if you refuse to let the officer search your car?  If I refuse, won’t that be suspicious that I am doing something illegal?

Roberto should refuse consent.  If Roberto granted consent, the officer, despite no legal justification to search Roberto’s vehicle, would now search Roberto’s truck because Roberto allowed the officer to search.  Roberto would not break the law by refusing consent.  As a matter of law, Roberto is able to refuse consent and the officer may not use Roberto’s refusal as suspicion amounting to probable cause to search without a warrant.

The Fourth amendment of the U.S. Constitution guarantees the people the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.  The amendment also provides that no search or arrest warrants shall be issued except those based on probable cause and which particularly describe both the place to be searched and the person or things to be seized.  Article I, §14 of the Utah state constitution is similar; however, Utah courts have found that it provides even greater protections than its federal counterpart in certain cases.

When reviewing the legality of police interactions with citizens, courts initially assess the nature and extent of the contact.  To aid in this analysis, interactions or encounters, are divided into three conceptual categories.  First, there are encounters of a consensual nature.  This has been called a “right to inquire.”  This is a right to ask a question enjoyed by all citizens, whether they work in law enforcement or not.

Next, are encounters of a more intrusive character.  These are commonly called detentions, investigatory stops, or “Level 2” stops.  The legal justifications offered by law enforcement for this more forceful contact must be based on facts that are specific and articulable and lead to a rational inference or a reasonable suspicion that criminal activity is being undertaken.

The final level of encounter is a formal arrest, sometimes referred to as a “Level 3” stop by Utah courts.  To justify this action, law enforcement officials must possess a higher degree of suspicion, i.e., “probable cause” to believe that a crime is being, or has been, perpetrated and that a specific person committed it.

The categorization of encounters is essential to determine the rights of the person.  If the encounter is consensual, the Constitution is not implicated because no seizure of a person, within the meaning of the Fourth Amendment, has taken place.  However, if the encounter rises to the level of a detention or a full-scale arrest, then that person has been seized, and law enforcement conduct will be judged according to the standards of the Fourth Amendment.  The person seized can then avail himself or herself of the Amendment’s protections.

The encounter between Roberto and the officer started off as a level 3 encounter; a detention.  When the officer pulled over Roberto for the broken tail-light, the officer’s legal justification was that he (the officer) had a higher degree of suspicion, i.e., “probable cause” to believe that a crime is being, or has been, perpetrated and that a specific person committed it.

Roberto was committing a violation by driving without a taillight.  The officer saw that a taillight was out and that Roberto was driving the truck with a broken taillight.  Therefore, there was legal justification to pull over Roberto and detain him.  Now, the detention was not long and the officer decided not to cite Roberto.  Once the officer decided not to cite Roberto and gave Roberto back his license and registration, the detention ended.  Roberto was free to leave.  Even though the officer asked permission to search Roberto’s truck, the very fact that the officer was asking showed that the officer did not have legal justification to search his truck. Roberto was free to refuse consent to search.  Moreover, refusing consent when an officer does not have legal justification to search a person’s car, cannot form suspicion amounting to probable cause to search without a warrant.

So, what’s the lesson here?  If an officer asks to search your belongings, whether it’s your car, your purse, your luggage, or your house, you can feel comfort to know that you can refuse and be within your constitutional rights to do so.  If an officer searches your belongings without your permission and you believe that you haven’t committed a crime, call an attorney.   An attorney will be able to protect your rights.