Most of the people who come in my door charged with various drug possession
charges usually have the same general facts involved in their case. They are driving along, and get pulled over by a law enforcement officer. During the course of the traffic stop, the Officer starts inquiring about drugs. The Officer’s inquiry isn’t out of some random curiosity, he has gotten to this point based upon two primary factors: the obvious odor of an illegal substance or the general location of the traffic stop. Each of these factors raise certain issues.

It is quite often that law enforcement uses the “odor” of burnt or fresh drugs as a basis of a search of a vehicle. It is important to note that the smell of burnt marijuana (or any burned substance) can linger in an automobile’s upholstery and carpeting for quite some time after the substance is smoked. However, Florida courts have held that any detection of the odor of an illegal substance is valid “Probable Cause” for a search. Regardless as to whether the odor is stale or not, law enforcement will seek to search the entire passenger compartment (and possibly the trunk) of your vehicle.

In some circumstances a motorist is stopped in an area in which the law enforcement officer associates with drug activity. Since the Officer might have the impression that the motorist drove to that area with the intent to obtain drugs, the he/she might feel this is justification to make inquiries. I have heard that when people are in this situation, many times the Officer will ask if the motorist has “drugs or weapons” in their possession. This is often immediately followed by an request to search the motorist’s vehicle.

Regardless of which case the motorist is involved with, it is important to note that they are not in a “custodial” situation. Courts have held that a brief detention involved with a traffic stop for a traffic violation is not unreasonable. Since this is not a “custodial” situation, Miranda warnings are not required to be read to the motorist. Nevertheless, the motorist is fully entitled to decline to answer any questions and/or searches of the vehicle. You should also be aware that should you find yourself in this situation, anything you say can and will be used against you in a court of law. You should also be aware that you can request an attorney at any time. You might not get one, but it is supposed to stop your interrogation.

Remember, any encounter with law enforcement will take on the tone that you dictate. If you are contentious and discourteous to the Officer, they will be contentious and discourteous back to you. I’m not saying that you have to take a subservient position, but you can assert your rights in a respectful manner. A respectful discourse will alleviate an otherwise tense situation.