What factors determine reasonable suspicion for a drug search?
I’ve written previous articles on warrantless searches of motor vehicles in Pennsylvania, along with motions to suppress evidence specifically for guns, drug, and firearm charges. My new book focuses on these crimes in the Commonwealth and provides some great strategies. Reasonable Suspicion and Probable cause are the evidentiary standards a criminal court will use to determine if a police officer or state trooper has violated a person’s constitutional rights against illegal search and seizure under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.
In many situations, however, police officers who suspect that a car is carrying or trafficking drugs use K-9 (dogs) to help them establish probable cause for a search. Remember that while police need probable cause to search a person or his belonging, they only need reasonable suspicion to initiate a “dog sniff” of a person’s properties or belongings.
Pennsylvania courts will determine if a police officer or state trooper had sufficient reasonable suspicion based on a totality of circumstances analysis. This analysis is an objective standard based on not only what the officer observes but the officer’s training and experience in these areas. Without reasonable suspicion (a lower form of probable cause) any items found following a search are inadmissible in court under both the US and Pennsylvania Constitution.
While there isn’t one factor in a totality of the circumstances analysis, there are things which police and state troopers aren’t permitted to use in their determination of reasonable suspicion for these “warrantless” searches. Remember, that very recently the Pennsylvania Supreme Court found that Pennsylvania doesn’t provide any further protection than the US Constitution with regards to warrantless searches and so the need for search warrants in the Commonwealth has severely diminished in the case of cars and motor vehicles.
While factors such as smell and obviously the sight of drugs (plain view) will strengthen an officer’s belief that reasonable suspicion and/or probable cause exist for a vehicle search, there are factors that Pennsylvania courts will completely disregard. These factors include the following:
1. a person’s address (an address that the officer indicates is known as a “Source City” or an area known for drug activity)
2. the year, make, and model of the car
3. the debris or trash in the car (assuming that it’s not contraband)
4. out of state tags or license plate
5. high or very low mileage on a car
6. a radar detector
7. the driver’s admission that he or she had been to drug rehab (even though you shouldn’t say anything to police)
Reasonable suspicion can’t be a “hunch” or a guess that a crime is occurring or has occurred but a belief based on an objective standard combined with the officer’s training, education, and experience. If you’re stopped for a vehicle code violation (speeding, expired tags, etc.) the officer needs an independent basis to continue questioning if it becomes clear that the initial reason for this stop has ended.
When police continue to question and a person “doesn’t feel free to leave” this triggers a person’s constitutional right against an unlawful seizure under the Pennsylvania and United States Constitutions (4th Amendment). A detention is unlawful if the officer doesn’t have reasonable suspicion for the investigation and is simply fishing for an answer in the hope of uncovering something that provides him with the necessary evidence to initiate a search.
In the case of drugs, the officer has to testify about sights, smells, and even the observations of the driver himself. The officer would need a similar set of “articulable facts” in the case of a DUI assuming that he stopped the car for some nonmoving violation (tail light).
This is the reason why I always stress never to provide police with any more than your driver’s license and insurance information. The more information that you provide, the further it will help their ability to establish reasonable suspicion. Remember that police can’t use the above factors but they can use the following responses against you to establish reasonable suspicion:
1. I was coming from a bar
2. I was partying with friends
3. I had a few drinks
4. I smoke weed sometimes
5. I haven’t done drugs recently
The above isn’t an exhaustive list and less you say is always better when speaking to police—they are asking to build a case, not to be your friend. For more information on criminal defense strategies and techniques I encourage you to read my free information in the download section.