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Should I Consent to be Searched?

The Situation

You’re driving home after a long day of work, and a police officer stops you for speeding. He pulls out his ticket book and he asks if there’s anything in the car he should know about. Perplexed, you say no. The officer hands you a ticket and then asks if he can take a look in your car. Do you have to let him into your car? No. Thanks to the Fourth Amendment to the United States Constitution.

Court battles have eroded the Fourth Amendment to the point where more searches today are performed by law enforcement without a warrant than with one. These exceptions to the warrant requirement are numerous and nuanced, and this video will only cover one of them: consent. Also, the most common.

But, to start us off, we have to begin with the Fourth Amendment which reads: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. And no warrants shall issue, but upon probable cause supported by oath, or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

What is a search? A search is a government agent’s intrusion into a person’s reasonable expectation of privacy. The Fourth Amendment provides that the police must obtain a warrant based on probable cause to interrupt this right lawfully, but if a police officer asks to search your person, your vehicle, or home, and you say yes, he isn’t required to obtain probable cause or a warrant. You have provided consent, and this is the most frequently cited exception to the warrant requirement.

What You Can Do if asked for consent to search

So, what if you find yourself resting comfortably in bed at 2 AM and you hear a loud knock at the front door, and an authoritative voice calls out, “Police; open up”? Do you have to let them in? If they don’t possess a valid warrant, then no. If they claim to have a valid warrant, they will likely force entry into your home if you refuse them entry. In some cases, they don’t even have to knock and announce.

When it comes to a vehicle, most good folks would think they have nothing to hide and allow the police to search it. There are perils to this. You waive any argument that any evidence was gathered illegally. For example, if you keep your prescription thyroid medication in a pill divider and not the original prescription bottle, you could be arrested immediately. It’s always good practice to refuse consent to the search of your home or your car because you never know what the police may find and use against you.

If you do refuse consent, do so politely. Police officers will generally be annoyed by a person who doesn’t permit them to search. The good news is that it’s not against the law. If they want to search your car or your home and they don’t have an exception, they’re required to get a warrant. If you have any questions about the Fourth Amendment or police interactions, please call U.S. LawShield and ask to speak to an Independent Program Attorney today.

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