Last week I was pulled over for speeding on a Massachusetts street. The cop came up to the car after checking my registration and told me that my registration was expired. It was because I forgot to renew it last month. So I'm all nervous now and the cop asks me if he can search the car because he thought he smelled pot. Like an idiot I tell him to go ahead becasue I was thinking I don't have any pot in the car so who cares if he searches. I don't know what I was thinking but I was nervous and I felt like he wouldn't find the prescription drugs I had under the seat. I don't have a prescription for the pain killers so I got busted for that. I know I could have said no to the search but don't the cops need to warn people that they have a right to refuse the search of the car? This guy asked me like he was going to do it anyway even if I didn't agree. So I got out of the car like he asked.
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The Editor, Mark Bernardin, is an attorney living in MA. Please send your suggestions or comments to: TheEditor@malawforum.com
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Must police inform of right to refuse search
First, you need to talk to a criminal defense attorney if you have not done so already. There may be facts associated with the arrest that you are not including in your question but that might improve your legal situation. To answer your question: No, the police do not need to inform you of your right to refuse the search of your car.
Some general information. If the police officer who pulls you over does not have a warrant when he pulls you over (why would he?) or some other legal authorization to search your car, then he cannot search your vehicle. If he does not have the legally required probable cause for the search, then any incriminating items he finds during an unauthorized search will likely be thrown out by a court, or suppressed. In some cases, if the officer has a reasonable suspicion that some criminal activity is going on, that can justify a search of the car. However, the Supreme Judicial Court of Massachusetts recently held that, by itself, the odor of burnt marijuana cannot justify an exit order and search of a vehicle.
Unfortunately, if you give a police officer permission to search, you essentially toss your constitutional protections against unreasonable searches out the car window. The lesson here is that it is OK and perfectly legal to politely decline when a police officer asks you if he can search your vehicle, even if the officer seems determined to do the search regardless of how you respond.