Varghese Summersett

Getting pulled over by police is nerve-wracking under any circumstance, but what happens if you get stopped and you have marijuana, a gun, or an open container of alcohol in the vehicle?  In this article, the board certified criminal attorneys at Varghese Summersett explain the potential consequences of a Texas traffic stop if you have if you have prohibited substances, firearms, or alcohol in your possession.

texas traffic stop

Scenario 1: Texas Traffic Stop and the Smell of Marijuana 

If you are stopped by police in Texas, and the officer smells marijuana, they have the right to search your vehicle – even without a warrant or consent of the owner.

Legal Basis and Implications

In Texas, marijuana is still illegal. That means if an officer smells marijuana, they have probable cause to believe that a crime has been committed and can search your vehicle. People sometimes wrongly believe that an officer has to have a warrant to search your property. This is true if it is your home, but it does not apply to your vehicle.

Officers have the ability to search your vehicle under what is commonly referred to as the “automobile exception” to the 4th Amendment. This exception is predicated on the rationale that because drivers can take off, securing a warrant is often impractical and could potentially allow for the destruction or removal of evidence. Therefore, when there is probable cause—such as the smell of marijuana emanating from the vehicle—officers in Texas have the legal authority to perform a search promptly and without a warrant, aligning with the stipulations of the “automobile exception.”

If marijuana is discovered during the 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 unlawful firearms, drugs or stolen property, additional charges can be brought.

Odor of Marijuana (vs. Hemp) as Reasonable Suspicion for a Stop

Challenging reasonable suspicion based on the odor of marijuana in Texas, particularly after the enactment of House Bill 1325 on June 10, 2019, involves a nuanced legal argument that underscores the inherent difficulty in distinguishing between legal hemp and illegal marijuana without specific laboratory testing.

The pivotal aspect of HB 1325, which differentiates hemp from marijuana based on a THC concentration threshold of 0.3 percent, becomes a crucial point of contention in establishing the legitimacy of reasonable suspicion solely based on odor. Given that both hemp and marijuana emanate a similar scent, officers are unable to definitively ascertain the legality of the substance in question merely through smell. This inability to differentiate between the odors of hemp and marijuana, and thereby determine the legality of the substance, brings the constitutionality of searches and seizures based on such suspicion into question, invoking considerations related to the Fourth Amendment.

Texas Traffic Stop: What if You Have Drugs, Guns or Alcohol?

Scenario 2: Unlawful Carrying of a Weapon During a Texas Traffic Stop

In Texas, having a gun in your vehicle is generally legal in Texas – unless you are committing an offense higher than a Class C misdemeanor, are a gang member, or are otherwise prohibited from possessing a firearm. In this section, we discuss Unlawful Carrying of a Weapon (UCW) and a Texas traffic stop.

In Texas, if you are pulled over and police discover you are committing some other type of crime, you can be charged with Unlawful Carrying of a Weapon (UCW) in addition to whatever other crime you are committing.

Understanding the Law & Possible Charges

Under Texas Penal Code § 46.02, it is illegal to carry a weapon while committing an offense that is more than a Class C misdemeanor (which is a ticket.) Unlawful carrying of a weapon is generally a Class A misdemeanor punishable by up to a year in jail and a $4,000 fine. Below are examples of how someone can be charged with UCW during a traffic stop.

  • Driving While Intoxicated (DWI)
    If a driver is stopped and found to be intoxicated and there is a gun in the vehicle (even if it’s in a locked glove box or console), they can face UCW charges along with the DWI charge.
  • Possession of a controlled substance
    If a driver is stopped for a traffic violation and subsequently found to be in possession of a controlled substance (a THC vape pen, cocaine, methamphetamine, etc.) while having a gun in the vehicle, this can lead to a UCW charge along with drug charges.
  • Evading Arrest
    If a driver attempts to flee police and is apprehended with a weapon in their vehicle, they can be charged with UCW in conjunction with evading arrest.
  • Engaging in Organized Crime
    Under Texas Penal Code § 46.02, a person commits an offense of Unlawful Carrying Weapons if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is a member of a criminal street gang. This means if a person, identified as a gang member, is found with a gun in their car, they can be charged with Unlawful Carrying of Weapons, regardless of whether they are committing another crime at the time or not.

Texas Traffic Stop: What if You Have Drugs, Guns or Alcohol?

Scenario 3: Open Container and a Texas Traffic Stop

In Texas, it is illegal to have an open container of alcohol a vehicle while it is on a public roadway. This means that even if you are not drinking, having an open bottle or can of alcohol in your car can lead to legal trouble. So what happens if you are pulled over for a traffic stop and the officer finds an open container of alcohol in your vehicle?

Possible Consequences

If an open container is found during a Texas traffic stop, it can 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 can still have negative consequences. It could also lead to a larger fine and potential jail time if the traffic stop was a result of another offense, such as Driving While Intoxicated (DWI) or possession of drugs.

Texas Traffic Stop: What if You Have Drugs, Guns or Alcohol?Scenario 4: Searching a Passenger’s Personal Belongings

In Texas, the rules governing the search of a passenger’s personal belongings during a traffic stop are dictated by the Fourth Amendment’s protection against unreasonable searches and seizures.

Establishing Probable Cause or Consent

Officers may not arbitrarily search a passenger or his or her personal belongings. To legally conduct a search, law enforcement must either obtain the passenger’s clear and voluntary consent or establish probable cause that the passenger is involved in criminal activity or possesses evidence of a crime in their belongings.

For example, if an officer smells marijuana during a traffic stop and the passenger has a backpack on the backseat, they may have probable cause to search that backpack. However, if the passenger consents to the search or denies consent but is arrested and their belongings are searched as part of a lawful arrest, then any evidence found can be used against them in court.

For an officer to search a passenger’s belongings without consent, there must be specific and articulable facts leading to a reasonable belief or suspicion that the passenger is involved in criminal activity. A mere traffic violation committed by the driver does not inherently grant the officer the right to search a passenger’s personal items.

Asserting Your Rights

Passengers have the right to respectfully decline a search of their personal belongings if the officer does not have a warrant, there is no probable cause, or exigent circumstances are not present. Passengers can ask if they are free to leave and should clearly and unequivocally state that they do not consent to a search.

Protecting Your Rights with Varghese Summersett

Facing charges stemming from a traffic stop or search in Texas can be a frightening experience, with potential long-term consequences. At Varghese Summersett, our team of seasoned attorneys will meticulously evaluate every facet of the traffic stop, search, and subsequent proceedings to ascertain any violations of your rights or procedural problems.

We will scrutinize the legitimacy of the stop, the conduct of the search, and the foundations of any charges levied against you. If there is an issue, we will find it and use it to your advantage. Our goal is always to achieve the best possible result for our clients, whether it be a dismissal of charges or a reduction of penalties. Call us today at 817-203-2220 for a free consultation with an experienced attorney.


Varghese Summersett is a premier criminal defense firm based in Fort Worth, Texas. Our attorneys focus exclusively on criminal law and represent clients charged with crimes at both the state and federal level. We handle everything from DWI to capital murder to white collar crime. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of our senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal law, the highest designation an attorney can reach. We are the firm people turn to when the stakes are high and they are facing the biggest problem in their lives. - Contact Varghese at  
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