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Hey guys, it's Anthony Bandiero here with Blue to gold Law Enforcement Training. I'm in Scotch Plains New Jersey teaching advanced search and seizure. And I'm going to answer a question today that I know a lot of you have on your mind. Can you search a vehicles passenger for marijuana? And the answer is, probably, but I have to go into some, you know, legal reasoning here because the answer is really not that clear. In some regards, this video is probably going to be more than average, I try to keep my videos all under five minutes, this one is probably going to go a little longer. But let me dive right into it. Here's what the Supreme Court has told us about passengers. There's two key cases I want you to know about. Before we dive into a little more discussion about the marijuana issue. One, back in the 1940s, the US Supreme Court said that if you have probable cause for the vehicle, right, that there's something in a vehicle, it doesn't give you automatic right? To search passengers, you have to have a Nexus that just makes sense. If you pull over a vehicle, and let's say it's Uber, and you find drugs on the Uber driver, certainly that would not give you probable cause in and of itself to search some passenger who does not know that Uber driver. The other case, happened 1970s. And what happened there is the officer gave the driver a citation for speeding, and then did a search incident to arrest. Well, the logic here and I do hear cops, you know, saying this, and they're kind of taught this way is that a citation is in lieu of arrest you have you heard that before? Right? It's like, I'm not, I'm kind of like a rescue, but you're going to be free to go. That's an old school language from some court cases, quite frankly, I don't teach it because I see no value in it. If you have even if you have an arrestable offense, let's say a suspended license, and your state allows you to arrest somebody for a suspended license, but you're just going to cite and release them, you get none of the benefits of an arrest, you get no search, you have to be diligent in your time, and so forth. So there's no value in saying it's Aluma. Rest, from our perspective, from the law enforcement, or maybe academically, it's, it's, it's in lieu of arrest, let the prosecutors enjoy that doctrine, if it gives them anything, but for you, it gives you nothing new, they're having arrest or you don't, if you don't have an arrest, it's treated like a Terry stop, even though you're citing the person. All right, now let's move into the marijuana discussion. If you have probable cause, that a passenger has drugs on them, like marijuana, and you are not intending to arrest, that's where the problem comes in. When you do a search of somebody person, and it's not for weapons, that is arrest, like, in other words, if if you have a passenger probably cause that they have drugs in their pocket, you go right into the pocket and pull out the drugs. That type of action is arrest like meaning it needs to be supported by probable cause. And you probably technically arrested them, even though they may not go to jail that day. That is actually not a big deal. The fact that they don't go to jail, but still you have, you know, essentially did a search incident to arrest. That's the only exception. We do not have an exception at the Supreme Court level that says if you have probable cause that somebody has evidence on their person that in and of itself allows you to search the person, you know, for example, you have probable cause that somebody has drugs in their backpack and they're walking down the street. Do you have automatic authority to stop the person and search the backpack? Under some recognized exception of search one requirement? The answer's no. Usually these issues work themselves out. Because what happens is the cop ends up arresting the person anyway. And so what the courts would say is that that search was contemporaneous with the arrest. In other words, a search incident to arrest does not have to occur
only after the formal arrest of putting handcuffs on a person you can search them right before the arrest as long as the time is contemporaneous. So let's go back to the passenger. If you are going to search the passenger, it's either going to be an arrest or it's going to be exigency. So here's what I teach my students articulate either one if you're going to search a person's pockets and You believe they have you again, you have to have probable cause, right? And the driver said something the passenger said, Yeah, I'm holding, and you put your hands in the guy's pocket and you pull out, you know, a few grams of marijuana, maybe that's a site release, but you should articulate exigency, right? Not in a, you know, not necessary arrest, but exigency Do you have time to go get a warrant before the person before getting that you know, those drugs out of the person's pocket? Probably not. I mean, by the time you come back, the guy's gonna be gone, or you don't have the manpower to have somebody sit there and wait with the passenger while you go run to the courthouse. So just artic articular extensions exigency. The other one is another factor is, what if the guy knows that you're going to go get a warrant, and he has these drugs in his pocket, now you could be handcuffed and so forth. But he could also probably try to manipulate the drugs, he could try to take off running. If it's a paraphernalia pipe, and it's glass, he could land on it and break it. So that's what you should be articulating his excellency, you know, for these for these searches. Now, on the other hand, if you have probable cause, and you stick your hand in the guy's pocket, and you pull out, you know, crack cocaine, and he's gonna take a ride, well, then argue, arrest, because you're allowed to do a search incident to arrest even if the search comes right before the arrest. And it doesn't mind minor, your mindset, it's just objective reasonableness. So that's what's going on here. It's more complicated than you probably thought. Because the reason is, is most states do not have cases directly allowing cops to just with probable cause for marijuana to go right into the guy's pocket and grab it out. The only state that I've seen that has this is Colorado, they have a case on point. And it makes a little easier for those cops to do the job because they can point to a case that tells them they can do it. For all those others that don't have cases on point. I'm going to reiterate before I end off, if you have probable cause, that the passenger has drugs because of your investigation, again, not just because there's automatically drugs in the vehicle, that means the passengers can be searched. You have to have the Nexus, what would you tell the judge of why you believe the passenger has narcotics, it probably not that hard, but you better do that leap first. And then once you have probable cause, articulate one of two things. One, you made the arrest, which would be in the report that your resident or if you didn't arrest them, exigency that you had exigency due to the nature of the evidence, and the circumstances of where the stop is and you just don't have time to go get a warrant. If it even comes up, quite frankly, most of the times prosecutors and defense attorney especially when they're not arrested, these are because these are very minor crimes are being pled out. But if you're asked on the stand, why you did it, I would argue exigency if there was no arrest. I hope I've added some clarity to it. It's still not a very crystal clear subject, but I'm kind of sharing with you what I think the Supreme Court would probably decide. And until next time, stay safe.
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