Prosecutors seek to justify no-consent searches after the fact

A telling back on forth on the Texas District and County Attorneys' discussion board began with a prosecutor from Vernon citing the following facts, asking his colleagues to help him argue why a non-consent search at a routine traffic stop was justified. Here's the prosecutor's rendition of what happened:

Defendant was pulled over for traffic stop. Officer ran her name and a felony warrant came up from Oklahoma. Officer pulled defendant out of car. He told defendant that she had an outstanding warrant. Defendant says, "that is not me, it must be my sister. She is always using my name." Defendant was very nervous when asked about narcotics. (She had a previous POM arrest.) She requested that she be allowed to get back in her car and sit down.

Officer was awaiting confirmation of the warrant and agreed to let defendant get back in car. He searched the lunge area of the vehicle (without consent) and found a tin can with some baggies of methamphetamine under the driver's seat. He arrested defendant for POCS. When he returned to his office he got the pictures from the Oklahoma warrant that was issued in defendant's name and it turned out that it was actually defendant's sister.

The officer was acting in good faith and believed that defendant had an outstanding felony warrant when he initiated the search. It must be a good search, right?

Read the entire two-page discussion string and tell me what you think. Several opinions were offered that frame the topic:

Our friend John Bradley, the Williamson County DA who never met a search he didn't like, opined that it "sounds like a reasonable search. And that is the standard. An officer need not be right ever time, only reasonable," he said.

That was definitely the answer the original prosecutor was looking for; he thought the reasonable suspicion standard had been met because of the "felony warrant, nervous behavior, previous conviction for POM, her denial of the same, the reality that illegal weapons are often associated with drugs." A Brazoria County prosecutor, though, wasn't so sure:

You said the officer told her she had a warrant, let her back in the car, waited on confirmation, and at the same time did a nonconsensual search of the "lunge area"? What exception to the 4th amendment warrant requirement are you going to use? It is not a search incident to arrest because he never told her she was under arrest and let her back into the car. There is no consent. I don't think you get to the reasonableness of the search (which I agree was reasonable based on the officer's good faith) until you can prove an exception to the 4th amendment warrant requirement.

A Gainesville prosecutor similarly considered the search questionable:

The automobile exception does not apply, since the officer did not have probable cause to believe the vehicle contained evidence of a crime at the time of the search. Thus, I agree that the search must be justified as being similar to the situation in Terry. Merely by asking to be permitted to sit in her car, it does not seem the suspect was encouraging a search. If the officer was in fear of weapons, he should have denied the request or asked for consent. I also disagree that opening a small, opaque container on the prospect it might present a dangerous item is very reasonable.

A non-attorney posting on the string mentioned that it sounded like the officer was searching for drugs instead of a weapon, but that didn't deter the original prosecutor, who concluded:

adding it all up, a felony warrant, two lies to the officer, a previous arrest for POM (and a lie about that), excessive nervousness, combined with hesitation and a non-committal statement on the presence of contraband in the car, gave the officer probable cause to believe that there would in fact be contraband in the car. I think the Terry stop argument is a good one as well as the tin can was big enough to hold a weapon.

You know, I don't have any problem with Terry frisks. What bugs me is when officers perform a questionable search without consent, then a bunch of lawyers sit around jawing after the fact about what legal theory they can use to justify it.

In the end, the Vernon prosecutor chose "all of the above" for his reasons, even when they were contradictory. The officer could have thought there was a gun in the opaque tin, he says, but he also had cause "to believe there would in fact be contraband in the car." So what was he searching for, a gun or drugs? And if he's searching for a gun, the Legislature just clarified the law to say it's legal to carry a firearm in your personal vehicle so long as it's not in plain view and the person is an otherwise legal gun owner.

It's one thing for officers to exercise lawful authority at a traffic stop, and quite another for them to bully drivers, do whatever they want including search without consent, then feel confident that prosecutors will manufacture some cockamamy legal interpretation to justify whatever they do. That's exactly what the prosecutors are doing on this discussion string.

Some of you legal eagles in the crowd let me know your opinion: Was this a legal search, or did the police officer cross the line?