Being stopped by the police is nerve-wracking under any circumstances, but what happens if you get pulled over and have marijuana, a gun, or an open container of alcohol in the car? In this article, the board-certified criminal attorneys at Varghese Summersett explain the potential consequences of a traffic stop in Texas if you have prohibited substances, firearms, or alcohol in your possession.
Scenario 1: Traffic stop in Texas and smell of marijuana
If you’re stopped by police in Texas, and the officer smells marijuana, they have the right to search your car — even without a warrant or the owner’s consent.
Legal basis and implications
In Texas, marijuana is still illegal. This means that if an officer smells marijuana, they will have probable cause to believe a crime has been committed and can search your car. People sometimes mistakenly believe that an officer must have a search warrant to search your property. This is true if it is your home, but it does not apply to your car.
Officers have the ability to search your vehicle under what is commonly referred to as the “motor vehicle exception” to the law Fourth Amendment. This exception is based on the rationale that because drivers can take off, obtaining a warrant is often impractical and can allow evidence to be destroyed or removed. Therefore, when there is probable cause — such as the odor of marijuana coming from a vehicle — officers in Texas have the legal authority to conduct a search immediately and without a warrant, consistent with the terms of the “motor vehicle exception.”
If marijuana is discovered during a search, the individual can be charged with possession of marijuana, which can range from a Class B misdemeanor to a felony, depending on the amount found. If any other incriminating evidence or illegal items are discovered during the search, such as illegal firearms, drugs, or stolen property, additional charges may be filed.
The smell of marijuana (vs. hemp) is a reasonable stall to stop
Challenging reasonable suspicion based on the odor of marijuana in Texas, especially after the enactment of House Bill 1325 on June 10, 2019, involves a careful legal argument that underscores the inherent difficulty in distinguishing between legal cannabis and illegal marijuana without specific laboratory tests.
The pivotal aspect of HB 1325, which distinguishes hemp from marijuana based on a 0.3 percent THC concentration threshold, becomes a critical point of contention in establishing the legitimacy of reasonable suspicion based on odor alone. Since both hemp and marijuana give off a similar odor, officers are unable to conclusively confirm the legality of the substance in question through smell alone. The inability to distinguish between the odors of hemp and marijuana, and thus determine the legality of the substance, puts the constitutionality of searches and seizures based on such suspicions into question, calling for Fourth Amendment considerations.
Scenario 2: Illegally carrying a weapon during a traffic stop in Texas
In Texas, it is generally legal to have a gun in your car in Texas – unless you are committing a crime higher than a Class C misdemeanor, are a gang member, or are otherwise prohibited from possessing a firearm. In this section, we discuss Unlawful Carry of Weapon (UCW) and traffic stops in Texas.
In Texas, if you are stopped and the police discover that you are committing another type of crime, you may be charged with Unlawful Carrying of a Weapon (UCW) in addition to any other crime you commit.
Understand the law and potential charges
under Texas Penal Code § 46.02, it is illegal to carry a weapon during the commission of a crime that is more than a Class C misdemeanor (which is a violation.) Illegal carrying of a weapon is generally a Class A misdemeanor punishable by up to a year in prison and a $4,000 fine. . Below are examples of how someone can be charged a UCW fee during a traffic stop.
- Driving while intoxicated (DWI)
If a driver is pulled over and found to be intoxicated and there is a gun in the vehicle (even if it is in a glove box or a locked console), he or she could face a UCW charge in addition to a DWI charge.
- Possession of a controlled substance
If a driver is pulled over for a traffic violation and is subsequently found to be in possession of a controlled substance (THC pen, cocaine, methamphetamine, etc.) while having a gun in the vehicle, this could result in a UCW charge along with the drug charges.
- Evading arrest
If a driver attempts to evade police and is caught with a weapon in his car, he can be charged by the UCW in conjunction with evading arrest.
- Engaging in organized crime
Under Texas Penal Code § 46.02, a person commits the crime of carrying an illegal weapon if the person intentionally, knowingly, or recklessly carries a gun, an illegal knife, or a baton if the person is a member of a criminal group. Street gangs. This means that if a person, identified as a gang member, is found with a gun in their car, they can be charged with illegal carrying of weapons, regardless of whether or not they are committing another crime at the time.
Scenario 3: Open container and traffic terminal in Texas
In the state of Texas, it is illegal to have an open container of alcohol in a vehicle while on a public road. This means that even if you don’t drink, having an open bottle or can of alcohol in your car can lead to legal problems. So what happens if you are pulled over for a traffic stop and the officer finds an open container of alcohol in your car?
If an open container is found during a traffic stop in Texas, it could result in a Class C misdemeanor and a fine of up to $500. This may not seem like much compared to other criminal offenses, but having this charge on your record could have negative consequences. It can also result in a larger fine and jail time if the traffic stop was the result of another violation, e.g Driving while intoxicated (DWI) Or drug possession.
Scenario 4: Search of the passenger’s personal belongings
In Texas, the rules governing the search of a passenger’s personal property during a traffic stop dictate Fourth Amendment protections against unreasonable searches and seizures.
Determine probable cause or consent
Officers may not arbitrarily search a passenger or his or her personal belongings. To conduct a lawful search, law enforcement must either obtain clear, voluntary consent from the passenger or establish probable cause that the passenger is involved in criminal activity or possesses evidence of a crime in his or her belongings.
For example, if an officer smells marijuana during a traffic stop and the passenger has a backpack on the back seat, he or she may have probable cause to search that backpack. However, if the passenger consents or refuses consent to the search but is arrested and has their property searched as part of a lawful arrest, any evidence found can be used against them in court.
For an officer to search a passenger’s property without their consent, there must be specific and clear facts that give rise to a reasonable belief or suspicion that the passenger is involved in criminal activity. A mere traffic violation committed by a driver does not give the officer the right to search the passenger’s personal belongings.
Confirm your rights
Passengers have the right to respectfully refuse a search of their personal property if the officer does not have a warrant, there is no probable cause, or there are no exigent circumstances. Travelers can ask if they are free to leave, and must state clearly and unambiguously that they do not consent to being searched.
Protect your rights with Varghese Summerset
Facing charges arising from a traffic stop or search in Texas can be a scary experience, with potential long-term consequences. At Varghese Summersett, our team of experienced attorneys will carefully evaluate every aspect of the traffic stop, search, and subsequent actions to ascertain any violations of your rights or procedural issues.
We will review the legality of the arrest, the search procedure, and the merits of any charges brought against you. If there is a problem, we will find it and use it to your advantage. Our goal is always to achieve the best possible outcome for our clients, whether that is dismissal of charges or reduced penalties. Call us today at 817-203-2220 for a free consultation with an experienced attorney.