Possession of Drugs and Alcohol in Cars

Here at Weisz, Botto & Gilbert, P.C. we get a LOT of clients who are found to have alcohol or drugs in their vehicle.

Alcohol is not illegal to possess or transport unless it’s open in your car, or you are under 21. And open doesn’t mean out of the container, it means open in order to be able to drink. Amazingly we’ve seen “open” intoxicant cases where people were charged for just having a beer taken out of its case. This is not what an “open” intoxicant is. Drugs (illegal drugs, or prescriptions for which you don’t have prescriptions) are NEVER legal to possess in your car, or anywhere else.

So how do the police find drugs (or alcohol) in your car?

One way is obvious. They see them. There is a bag of weed sitting in the console, or on the back seat, or under someone’s leg, but it is visible to the naked eye. This is known as “plain sight” and the police do not need a search warrant to search your car for drugs if they can see them out in the open.

The second way is that you, the driver, give the police consent to search your car. The police, if they don’t have reason to believe that there is alcohol or drugs in the car, must ask your permission to search. You do not have to give them permission to search. It is your right to refuse a search. If the police are asking you to search your car, it’s probably because they don’t have a reason to and are just hoping you will say yes. A lot of people say yes.

If you say no, and you exercise your 4th Amendment right to be free from unreasonable searches and seizures, then the police may briefly detain you to bring around a search dog to walk around (not in) your car, and smell for drugs as long as the stop is not unreasonably prolonged. This precedent was set in Illinois v. Cabelles (2005) in which it was held to be legal to have a drug sniffing dog brought around your vehicle during a traffic stop. This means that your stop could be for something completely unrelated to drugs, like speeding, and as long as the stop is not unreasonably prolonged, you will have to wait while the dog sniffs around your vehicle . If it alerts (barks) then the police can go inside it. So beware, an officer with a K-9 unit will almost certainly do a perimeter search of your car.

The third way the police can search your vehicle is because they have a search warrant specifically to look inside your vehicle. It is most likely that this will not be executed when you’re driving, but who knows. This is a very uncommon occurrence (few people are going to be pulled over and have the police in possession of a search warrant of the car).

If you are stopped by the police, they can only search your car if you are letting them do so, or they have a reason to believe that you have drugs or other contraband in the car. That “reason to believe” has to be something more than just a hunch.

If you have been stopped by the police and they found drugs or open intoxicants in your vehicle, give Weisz, Botto & Gilbert, P.C. a call at (815) 338-3838.