Supposedly there is an old Chinese proverb which says something to the
It is easy to dodge the arrow of an enemy, but difficult to avoid the spear
of a friend.
I suppose that can be taken to mean that when your friends are pointing
out your flaws, which may hurt your feelings, it can be hard to avoid
the truth behind what they say. On the other hand, even the spears they
inadvertently throw at you can sometimes land you in trouble.
Take for example the situation created when three friends are driving down
the highway in a car belonging to one of them. Unbeknownst to two of the
occupants, the third person “throws a spear” at his friends,
by carrying a few pounds of cocaine in his own luggage. As is often the
case, especially when the occupants of the vehicle are not family members,
each occupant of the vehicle has their own individual luggage sitting
in the trunk.
As luck has it, this vehicle is pulled over for a minor traffic offense,
such as following too closely to the vehicle in front. Because one thing
officers do is try to find reasons to search people’s vehicles for
illegal drugs, the officer may ask one of the occupants for consent to
search “the vehicle”.
Strangely enough, one person consenting to a search of “the vehicle”
may land all of the people in the vehicle in jail on drug trafficking
charges. Not only is it strange because only one person in this example
is actually guilty, but it is also strange because of how the search of
the luggage is going to take place.
Even though the law seems fairly clear on the concept that an officer cannot
search everyone’s luggage unless he has a reasonable belief that
whoever gave consent to search the vehicle has common authority over all
of the luggage in the vehicle, the officer is probably going to search
all of the luggage in the vehicle right there on the spot unless anyone
expressly tells the officer that their own luggage may not be searched.
Of course, the officer finds the cocaine, which will cause him to arrest
first, and ask questions later. In our example, two completely innocent
people are going to be arrested, taken to jail, locked up in jail, forced
to be in front of a judge, and not be released until they are able to
bond out. They will have to fight about their innocence later on. Unfortunately,
their permanent record is now likely to include being charged with a drug
trafficking charge. Good luck explaining that to mom and dad, or potential
What can be done to prevent such a calamity?
Well, nothing is a guaranteed act of prevention. But there are things which
can be done to minimize the chance of this happening.
First of all, never give consent to have your vehicle searched by law enforcement.
That will leave the officer with having to try getting consent from the
other occupants, or trying to find probable cause that the occupants are
committing a crime so that the officer may search the vehicle without
consent, and without a warrant. It is much easier for a defendant to make
an argument that the officer lacked probable cause to search without a
warrant, then to fight about whether consent was validly given.
Next, when you are traveling, do not share a bag with someone else without
knowing exactly what is in the bag. If you share a bag with someone else,
and they give consent to search the bag, the officer has the authority
to search the bag. The person with whom you share the bag has just as
much right to the bag as you, and further, you have a much diminished
expectation of privacy in something you share with someone else.
Also, when traveling, make it clear as you can, based simply on looking
at the luggage, that your bag is being used by you only. The point of
this is to make it unreasonable for the officer to assume the person who
consented to a search of the vehicle has authority over all of the luggage.
In one Nebraska case, the Nebraska Court of Appeals held that it was illegal
for the officer to search the make-up purse belonging to the female passenger
in a vehicle when the male driver had consented to a search of the vehicle. In
State v. Caniglia, 1 Neb. App. 730 (Neb. App. Ct. 1993), the Court held, the makeup purse,
(which was found under the female’s seat), “was not an item
which police officers could reasonably believe belonged to a male driver
or which a male driver would possess a sufficient relationship to or common
authority over”. Therefore, it was not reasonable for officers to
believe that the driver possessed or had authority over the purse.
The obvious answer may be to say to the officer that the officer may not
search your bag. The reason you may not want to voice this objection right
away is because when officers are told they may not search an area, or
an object, their desire to search that area or object will only increase.
Unfortunately, it can be very hard to determine if an officer is going
to search your bags, as quite often, a person’s bags are often out
of the person’s field of view when the officer is searching through
a vehicle. If an officer perhaps was going to skip your bag, or not see
or notice it at all, bringing attention to the bag may backfire on you.
And of course, choose your friends wisely, in order to avoid their unintentionally
thrown spears. Try not to travel with, or even associate with, people
that may be in the business of carrying cocaine. And if you are in the
business of carrying cocaine, make sure all of your friends have read
this article before you travel with them, so they will know not to consent
to a search of the vehicle!