If I was in a rental car in a parking lot and a cop come over just to “talk” to me, does he have the right to take me from he car and search my person and the rental without my consent?

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If I was in a rental car in a parking lot and a cop come over just to “talk” to me, does he have the right to take me from he car and search my person and the rental without my consent?

And if drugs were found hidden in the rental, of which I was unaware, can this be considered common area or is there some type of defence for this? Can I request the police audio recording be called as evidence and what happens if they cannot produce them?

Asked on September 13, 2015 under Criminal Law, California

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If your car had not already been stopped, the officer would have needed reasonable suspicion that you had engaged in some type of traffic violation to detain you.  However, you were already stopped.  This means that an officer, just like any other citizen, can walk up to you and say hello and engage in conversation.  Since all states require identification, they can also ask you to produce your ID to prove who you are.  But... that's all the officer can do unless he develops a reason to detain you i.e. probable cause or if he obtains your consent to do more.
If the officer didn't have a reason for removing you from the rental car or a reason for searching the car, and you did not consent to either act, then the search could be challenged and any evidence found as a result of the search could be thrown out.... which would eventually mean the case would be tossed since the main evidence was suppressed.
You also mention that this was a rental car and you were not aware of drugs in the car.  Even if drugs are found in a vehicle, the officer still has to prove that you had some knowing intent to possess the substances.  If there was more than one person in the vehicle, it would be a defense that the substances found actually belonged to someone else.  If the substances were found in a concealed compartment and this was a rental car, you could also allege a defense that they were actually the prior renter's.  The success of any defense will depend on how well it's developed and the nature of the juries where your case is being tried. 
With regard to the police audios... you can request copies.  I would suggest doing so sooner than later because these are often overwritten after a couple of months.  If the videos are destroyed or cannot be produced, you can argue about the destruction of the videos, but it's not usually a basis for a case being tossed out, unless the video is the only evidence of the offense.


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