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In the United States, a police officer may search a car without a warrant by invoking a probable cause, such as "I smell illegal drug X in your car"? Assuming the police officer made it up and that there exist no recording of the police officer admitting he lied, how to challenge in court such a claim?

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    You can challenge the police officer's testimony by saying that the police officer is lying. If you cannot call the officer's credibility into question nor present any other evidence corroborating your story, the challenge is likely to fail. At the point where it's one person's word against another, the police officer generally wins. Jury selection will be important in such a case. – phoog Nov 26 '16 at 4:41
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    @phoog this is a question of law about admissibility of evidence: it is a matter for the judge not the jury – Dale M Nov 26 '16 at 20:11
  • @DaleM The question is how to challenge the officer's statement. Surely you are correct that a successful challenge to its admissibility would be a favorable development, but if the evidence were ruled admissible, it would still be subject to challenge based on the officer's credibility or on conflicting testimony. These would be matters for the trier of fact, that is, for the jury, if there is one. – phoog Nov 26 '16 at 20:25
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    @phoog if the search is deemed legal then presumably the defendant has to overcome the physical evidence of the drugs - the credibility of the officer is moot – Dale M Nov 26 '16 at 20:55
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    @davidgo This question implicitly assumes that the search was performed without consent. If the searcher has consent, then there is no need for probable cause nor for a warrant. In that case, the court challenge would have to be to the validity of the consent (for example, by alleging that the subject of the search was coerced). In practice, if someone does not consent to a search, that doesn't physically prevent the officer from performing the search. Then the question of the search's "reasonableness" under the fourth amendment is one for the court. – phoog Jun 11 '18 at 18:39
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In the heat of the moment there is nothing you can do. You can very likely sue them later if the search shows up empty or if they infringed your rights.

In order to actually make the claim you'd either need a history of previous searches based on officer's suspicions that all showed up empty (thus indicating a pattern of harassment against you, and abuse of powers by the officer) or you'd need to find out if that same officer has done other searches based on their 'gut instincts' and constantly coming up empty (therefore establishing a pattern of this particular officer doing this regularly in infringe on citizens rights).

If an officer pulls you over for a traffic stop and performs the search (even if it's illegal), take video of it and make them aware you have not consented to a search. You are allowed to film the police in execution of their duties. No, this isn't considered a private matter and anyone who thinks it classes as private is out of their mind. You might not be able to stop the search, but you can take action against them later. I cannot stress this enough but do not try to stop them. This will only end badly for you.

EDIT: For clarification, I am British. The same concept applies in the US but the charges you can hold against an offer may vary in the states

  • The law in the US and England and Wales is completely different. In the US, anything found in an illegal search cannot be used in evidence; in E&W it can. – Martin Bonner supports Monica Jun 11 '18 at 11:28
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    This question is not about whether or not evidence is obtained illegally. This is about someone opposing a search of their vehicle when an officer simply says "I can smell drug X", uses that as grounds for a search and then nothing is found. As we established in the answer, they shouldn't try to stop them if they forcefully search the vehicle – Horkrine Jun 11 '18 at 12:04
  • I don't see anything in the question which indicates "nothing is found", where do you see that? I think the question is about how the OP gets the fact that something was found excluded from the evidence, on the basis that the search was illegal. (And my basis is "how to challenge in court such a claim?") – Martin Bonner supports Monica Jun 11 '18 at 12:56
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    @Martin Bonner That overstates the extent to which the fruits of an illegal search are inadmissible in the US – see my answer to a question about the fruit of the poisonous tree doctrine. – sjy Jun 11 '18 at 13:05
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    @sjy -ish. Unless I have misread your answer completely, the starting point is that an illegal search invalidates the evidence; in E&W it doesn't. Both jurisdictions have nuances (of course). – Martin Bonner supports Monica Jun 11 '18 at 13:17

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