Is the smell of tobacco legal reason for a car and body search?

[Underagesmoker]

What is the name of your state? Texas

This seemed more likely to fit within this board rather than the juvenile crime board, so I shall ask the question here (if this is the wrong board, please move it, thank you).

My friend was driving, and pulled over for speeding (4 over) and, though he had never smoked a cigarette in his life, the police officer told him that he had cause to search his body and car looking for a minor in possession charge obviously. Now, does the scent of tobacco create probable cause for a search? This affects me because if I am ever pulled over, I will likely be searched in the same manner because of my constant smoking ( I'm 17, and so is my friend.) Oh, and when my friend was asked for consent to a search, he remained silent and did not specifically give the officer verbal consent.

I do know that the scent of illicit drugs (such as marijuana) even without the "plain sight" rule is considered grounds for probable cause, but is the scent of tobacco?

[Happy Trails]

Originally Posted by Underagesmoker

What is the name of your state? Texas

This seemed more likely to fit within this board rather than the juvenile crime board, so I shall ask the question here (if this is the wrong board, please move it, thank you).

My friend was driving, and pulled over for speeding (4 over) and, though he had never smoked a cigarette in his life, the police officer told him that he had cause to search his body and car looking for a minor in possession charge obviously. Now, does the scent of tobacco create probable cause for a search? This affects me because if I am ever pulled over, I will likely be searched in the same manner because of my constant smoking ( I'm 17, and so is my friend.) Oh, and when my friend was asked for consent to a search, he remained silent and did not specifically give the officer verbal consent.

I do know that the scent of illicit drugs (such as marijuana) even without the "plain sight" rule is considered grounds for probable cause, but is the scent of tobacco?

If the officer believes that a minor has/is violating the law, then the officer has probale cause.

Why would it be any different then if the officer smelled marijuana?

[caslerst]

I'm not a cop, lawyer, law student etc. But as someone who can sit on a jury, here's my two cents.

Tobacco stinks, a lot. So I think an officer could tell the difference between it being on his breath or just in the car in general. If he smelled it on his breath, to me, that's PC because it gives him reason to believe your friend has been smoking underage.

Smelling it in the car does not necessarily mean that your friend was the one smoking. Maybe it's his Dad's car and Dad smokes in it. To me, that's not PC. If it is, that means that as a minor, you automatically give up your right to consent to a search because your parent smokes in the car. Maybe that's how it is but if it is, it's not right.

[msiron]

The scent of tobacco creates suspicion and or probable cause, finding the cigs is another story for the ticket/arrest.

Smell emanating from the person (without EVIDENCE - aka a pack of cigs) would not effect an arrest/or ticket as many people who live with smokers will tell you, they reek too. Pets reek too, does not mean they smoke. This is not to say some ass cop wouldn't write a smoking ticket.

As of yet they do not have smokalizers for you to blow into, oh no, I have given them an idea! Can we create more money making schemes for the government, I think so.

[CdwJava]

Originally Posted by Underagesmoker

My friend was driving, and pulled over for speeding (4 over) and, though he had never smoked a cigarette in his life, the police officer told him that he had cause to search his body and car looking for a minor in possession charge obviously. Now, does the scent of tobacco create probable cause for a search? This affects me because if I am ever pulled over, I will likely be searched in the same manner because of my constant smoking ( I'm 17, and so is my friend.) Oh, and when my friend was asked for consent to a search, he remained silent and did not specifically give the officer verbal consent.

I do know that the scent of illicit drugs (such as marijuana) even without the "plain sight" rule is considered grounds for probable cause, but is the scent of tobacco?

If your friend is under 18, then it just might give cause. Whether it is good cause for a search or not would be up to a judge (not a jury) to decide based upon a motion to suppress. A judge would hear the officer's articulated cause to support his belief that there as contraband in the car and would rule on the merits of the arguments.

You also have to remember that in Texas, traffic violations are crimes subject to arrest ... if the officer really wanted to push the issue, he might have been able to simply arrest your friend and THEN search him AND the car subsequent to the arrest.

Your friend can hire an attorney and challenge the search in court if he wishes to do so ... though I suspect the fine will be a LOT less than the attorney.

As for you, it is real easy to avoid being searched by the cops - quit committing the criminal act of smoking while underage.

- Carl

[amlebede]

If you are registered as the owner of the vehicle and you are the only person under 18, they can search your car for tobacco products. It should classify as probable cause.

Summary of Texas Law:
Minors are penalized for purchasing or possessing tobacco products and must attend a tobacco awareness program or do community service. Failure to attend the tobacco awareness program or do the community service may result in a suspension of the minor's drivers license. A violation is punishable by a fine not to exceed $250. Upon producing evidence of attending a tobacco awareness program or doing the community service, the charge may be dismissed except in the case of repeated offenses.