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Choose Your Friends Wisely

Posted By Berry Law Firm || 25-Mar-2015

Supposedly there is an old Chinese proverb which says something to the effect of:

It is easy to dodge the arrow of an enemy, but difficult to avoid the spear of a friend.

I suppose that can be taken to mean that when your friends are pointing out your flaws, which may hurt your feelings, it can be hard to avoid the truth behind what they say. On the other hand, even the spears they inadvertently throw at you can sometimes land you in trouble.

Take for example the situation created when three friends are driving down the highway in a car belonging to one of them. Unbeknownst to two of the occupants, the third person “throws a spear” at his friends, by carrying a few pounds of cocaine in his own luggage. As is often the case, especially when the occupants of the vehicle are not family members, each occupant of the vehicle has their own individual luggage sitting in the trunk.

As luck has it, this vehicle is pulled over for a minor traffic offense, such as following too closely to the vehicle in front. Because one thing officers do is try to find reasons to search people’s vehicles for illegal drugs, the officer may ask one of the occupants for consent to search “the vehicle”.

Strangely enough, one person consenting to a search of “the vehicle” may land all of the people in the vehicle in jail on drug trafficking charges. Not only is it strange because only one person in this example is actually guilty, but it is also strange because of how the search of the luggage is going to take place.

Even though the law seems fairly clear on the concept that an officer cannot search everyone’s luggage unless he has a reasonable belief that whoever gave consent to search the vehicle has common authority over all of the luggage in the vehicle, the officer is probably going to search all of the luggage in the vehicle right there on the spot unless anyone expressly tells the officer that their own luggage may not be searched.

Of course, the officer finds the cocaine, which will cause him to arrest first, and ask questions later. In our example, two completely innocent people are going to be arrested, taken to jail, locked up in jail, forced to be in front of a judge, and not be released until they are able to bond out. They will have to fight about their innocence later on. Unfortunately, their permanent record is now likely to include being charged with a drug trafficking charge. Good luck explaining that to mom and dad, or potential employers.

What can be done to prevent such a calamity?

Well, nothing is a guaranteed act of prevention. But there are things which can be done to minimize the chance of this happening.

First of all, never give consent to have your vehicle searched by law enforcement. That will leave the officer with having to try getting consent from the other occupants, or trying to find probable cause that the occupants are committing a crime so that the officer may search the vehicle without consent, and without a warrant. It is much easier for a defendant to make an argument that the officer lacked probable cause to search without a warrant, then to fight about whether consent was validly given.

Next, when you are traveling, do not share a bag with someone else without knowing exactly what is in the bag. If you share a bag with someone else, and they give consent to search the bag, the officer has the authority to search the bag. The person with whom you share the bag has just as much right to the bag as you, and further, you have a much diminished expectation of privacy in something you share with someone else.

Also, when traveling, make it clear as you can, based simply on looking at the luggage, that your bag is being used by you only. The point of this is to make it unreasonable for the officer to assume the person who consented to a search of the vehicle has authority over all of the luggage. In one Nebraska case, the Nebraska Court of Appeals held that it was illegal for the officer to search the make-up purse belonging to the female passenger in a vehicle when the male driver had consented to a search of the vehicle. In State v. Caniglia, 1 Neb. App. 730 (Neb. App. Ct. 1993), the Court held, the makeup purse, (which was found under the female’s seat), “was not an item which police officers could reasonably believe belonged to a male driver or which a male driver would possess a sufficient relationship to or common authority over”. Therefore, it was not reasonable for officers to believe that the driver possessed or had authority over the purse.

The obvious answer may be to say to the officer that the officer may not search your bag. The reason you may not want to voice this objection right away is because when officers are told they may not search an area, or an object, their desire to search that area or object will only increase. Unfortunately, it can be very hard to determine if an officer is going to search your bags, as quite often, a person’s bags are often out of the person’s field of view when the officer is searching through a vehicle. If an officer perhaps was going to skip your bag, or not see or notice it at all, bringing attention to the bag may backfire on you.

And of course, choose your friends wisely, in order to avoid their unintentionally thrown spears. Try not to travel with, or even associate with, people that may be in the business of carrying cocaine. And if you are in the business of carrying cocaine, make sure all of your friends have read this article before you travel with them, so they will know not to consent to a search of the vehicle!