Sgt Milbourn~ Bodycam ~ Consent to Search~ I Smell Marijuana ~ Automobile Exception 4th Amendment
All visual redactions made by Wood County Sheriffs office.
Some parts were sped up 8x for time and privacy by our team.
Nothing was ever given to any of the accused after asking for something to drink.
No “shake” was recovered.
No illegal narcotics were found.
Suspect in handcuffs over 30 minutes before leaving for a 15 min ride to WCSO.
This is what will happen to your vehicle in a Wood County 16 minute unsuccessful search!!
When I arrived, stop was mostly over.
Sgt. Austin Milbourn told me when I asked for the reason for the stop “We trying to help her get her car going”.
I guess they forgot all that searchin stuff.
Why wasn’t the K9 used?
In some cases, the law enforcement officer might simply ask you about marijuana to see how you react. If you look flustered or worried, it might confirm their suspicions and give them the probable cause they were looking for to search your vehicle.
So, your best option in such a scenario is to remain calm, answer the cop’s questions in a non-confrontational tone, and clearly state that you do not consent to a search.
Is the odor of marijuana alone sufficient probable cause for a warrantless search in Texas? For Now, Yes.
The liberalization of marijuana laws poses a conundrum to law enforcement agencies that have historically relied on the “odor of marijuana” as an excuse to root out more serious criminal behavior, and to the courts that have a long history of endorsing this practice.
There is no bright-line answer from the Texas Court of Criminal Appeals currently. However, the great trend of the law is against basing warrantless searches on just the smell of marijuana.
Search and Seizure Law in Texas
Legal Warrantless Searches
Police officers do not always need a search warrant to search a person’s property. However, for a search to be legal without a warrant or the consent of the owner of the property, one of the following must be true:
• You are actively being arrested for another crime. In that case, a police officer can search your person.
• The evidence is in plain view, such as on the passenger’s seat of your car.
• The evidence is in a place where the defendant has no reasonable expectation of privacy. For instance, when you pull your trash out to the curb, it is now in a public space, and, legally, you no longer have a reasonable expectation of privacy regarding the contents of your trash. Yes, a cop can search your trash can without a warrant once it is in the street.
• The police have good reason to believe that evidence will be destroyed imminently.
• The police have probable cause to search a car. In this case, unlike with a house, they do not need a warrant. Probable cause is the standard at which there is enough evidence to believe that a person has committed a crime. So, if an officer claims to smell marijuana while giving you a parking ticket, then they can search your vehicle legally, even without a warrant.
Law enforcement takes full advantage of this “smell” tactic – especially when you consider there is no way to truly counter this allegation with an objective fact via reports or video – it’s an alleged odor!
If this happens to you, the best thing to do is hire a a qualified Texas criminal defense lawyer to help ensure you receive the best possible outcome on your case, and don’t answer questions until you speak with one!