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SHOULD YOU CONSENT TO A POLICE SEARCH?

Should you consent to a police search?

By Attorney William Derek Hux, updated November 2, 2016

The flashing lights in your rearview mirror make it hard to focus. The officer clears his throat, leans towards you, and says, “You seem nervous. Why are you so nervous? You don’t have anything in your car you shouldn’t have -- do you? You certainly wouldn’t mind if I take a look -- right?”


What should you do? What do you say?


I would politely and firmly say to the officer, “I know you are just trying to do your job, but I do not consent to searches.”

I believe you should NEVER CONSENT to a search of your person or property.


In conducting a search, the officer is ONLY looking for a reason to arrest you. They have no other reason to care what you have in your backseat, your trunk, your purse, or your book bag. The officer is not wanting to look through your things because they are just curious, he or she is looking to find something that incriminates you as being involved in illegal activity.


The three reasons why I never consent:

  1. If the officer had legal authority to conduct the search, they would not ask your permission.
  2. By consenting to a search, you are giving up Constitutional protections.
  3. Refusing to consent to a search is not an admission of guilt.


If the law enforcement officer already had the requisite probable cause needed to conduct a search, he or she would NOT be asking you to give permission to proceed. The ONLY reason why you are asked for consent is because you are giving law enforcement the go-ahead to do something they do not already have authority to do.


There are many circumstances when law enforcement is authorized to conduct a search without a warrant, a few examples are:

  • To retrieve evidence - a search is allowed when the officer has “probable cause” to believe evidence of a crime will be found there. The reason for the search must be more than “mere suspicion”, and the officer must believe that there is evidence at that specific location which can be recovered immediately. (If accused of shoplifting, police can search where the stolen item was believed to be concealed.)
  • For officer safety - law enforcement is permitted a quick “minimally invasive” search of what is within arms reach to check for weapons which could do them harm. (This is what allows law enforcement to conduct quick frisks or pat-downs of your person if you are stopped and questioned.)
  • If you have been arrested - law enforcement can conduct a search related to that arrest. (like to find other counterfeit money or illegal drugs) 


Without a search warrant signed by a Judge, or being in a situation like the above examples where the U.S. Supreme Court has said a warrant is unnecessary, the United States Constitution prohibits law enforcement from being able to search you or your things. If you submit to a search merely at the whim of suspicion by any government officer, you have rendered the 4th Amendment protections against “unreasonable searches and seizures” meaningless to yourself. 


There are good reasons why States demanded this protection be included in a Bill of Rights before they would ratify the new Constitution. In Colonial America, British officers had the authority to do door-to-door searches of entire neighborhoods if they had the suspicion of illegal activity or of non-payment of taxes, and the officers were not required to disclose the source of their suspicions or make other credibility determinations. Colonist homes and businesses were ransacked at whim. The 4th Amendment was specifically intended to create a buffer between US citizens and the intimidating power of law enforcement. 


Far too many people today consent to a search of their vehicles or their bags because they think they have to anytime an officer asks. You have done nothing wrong by refusing to consent to a search -- this is your Constitutional right. 


Because it is your Constitutional right, your refusal to consent to a search is not an admission of guilt. Your refusal to consent to a search does not then give the officer legal authority under “probable cause” to search you. Also, your refusal cannot be used against you in court to imply that you were involved in illegal activity or that you had something to hide. 


In my example at the beginning of this article, if you refuse to consent to a search of your vehicle, the officer can request drug dog to come to the location or for a search warrant to be issued. However, in April 2015, the United States Supreme Court strongly limited this authority in Rodriguez v United States when the Court ruled that law enforcement cannot extend a traffic stop even for a minute without a new justification for extending their search. Essentially, law enforcement is permitted to detain you only for the amount of time that is “normal” for whatever warranted the stop, unless new circumstances present themselves during the stop. For example, if you were initially stopped for speeding or for failing to stop at a stop sign, and you refuse to consent to a search of your vehicle, it is now improper for your vehicle to be detained for an a hour while waiting for a drug dog to arrive. With the ruling in Rodriguez, the idea of giving up your constitutional right because of convenience (“I consented to a search so I could be on my way”) is moot. 


I should mention that there are some folks who say good citizens should consent. The idea is that, “If I don’t have anything to hide, why should I worry if they want to look in my trunk?”  – the point is not that you do have anything to hide. That search of your property is protected by the United States Constitution. The default position is that you are already presumed to be innocent of any wrongdoing. You do not have to turn out your pockets and open every container to prove that you are innocent.


I know of another group who advocates that “You should always consent, especially when you do not have anything improper.” Their logic is that if you always consent, eventually the law enforcement will know that you don’t have anything illegal and they will be less likely to ask to search next time. They also believe that if everyone consents when they have no fear of arrest, eventually law enforcement will see that they are wasting their time conducting the searches and will stop asking – To me this is a stretch. Why would you give up Constitutional rights because you might cause some officer to feel like they could be using their time in more productive ways? I certainly would never voluntarily give up my 1st amendment (free speech), 2nd amendment (right to bear arms), 5th amendment (not be compelled to incriminate yourself), 6th amendment (jury trial), or any other rights because I hoped that then it might cause other people to change their mind. So don’t give up your 4th amendment rights so easily either. I suggest to you that it is precisely because most people do consent is why law enforcement asks to search. It is only if we all properly assert our rights that there will be fewer officers asking. 


There is no good reason to consent to a search. 


Please understand, our discussion here has nothing to do with “getting away with something illegal” and everything to do with the Constitutional protections that every United States citizen is entitled to. Police officers and other law enforcement officials have a difficult job and I do respect the good work that they do. There are well-established scenarios when an officer is permitted to legally search without a warrant, and those times when the officer needs to obtain a search warrant beforehand. As an upstanding citizen, you must be able to calmly, politely, and confidently assert your rights - otherwise those rights are meaningless.


To be clear – I ONLY verbally state my refusal to consent to a search. Under NO CIRCUMSTANCES should you physically interfere with a police search, refuse to comply with a direct order from the officer, or touch an officer in any way. THERE IS NOTHING GOOD that results from being disrespectful with law enforcement, and things will go bad for you very quickly if you do not remain calm and rational. If the search is improper, let your attorney handle it after the fact.

 

I choose to stand on the side of liberty. Our protection from “unreasonable searches and seizures” is part of the US Constitution for a reason. I refuse to consent to searches of my person or my property under all circumstances, and I encourage my friends and family to do the same.


“I do not consent to searches.”


Derek Hux - Attorney

Hux Law

573-642-7784



[Last updated 11.2.16 - originally posted 2.18.12]

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