Consent to Search: Know When to Say “No.”

Any criminal defense attorney will tell you, one of the most frustrating things to see is when someone consents to an otherwise unreasonable search. Under the Fourth Amendment to the United States Constitution, a police officer is not permitted to conduct a search without “probable cause” of some wrongdoing. Searches of automobiles can be justified by a slightly less stringent burden of “reasonable suspicion” that criminal activity is afoot. However, if a person gives consent to the officer for a search, then the search no longer needs to be justified by probable cause or reasonable suspicion. In most cases, searches that are consented to are tough to challenge and are usually upheld in the trial court.
There are some things that everyone should know about searches and the ability of the police to conduct them. First, and most importantly, you do no need to consent to an officer’s request to search you, your automobile, or your home. You are entitled to politely refuse unless and until the officer presents you with a warrant. Of course, you do not want to be seen as resisting, so if an officer tells you they are going to search (leaving little or no room for refusal), there is little you can do but allow the search and challenge it in court. But, in most cases, officers will simply ask, “you don’t mind if I take a look inside the car, do you?” If you hesitate, they may follow up with, “what’s the matter, you don’t have anything to hide, do you?”
These are attempts by officers to bypass the probable cause or reasonable suspicion requirement. Remember, an officer needs one of these to search; unless you give it to them. Don’t fall prey to manipulative police tactics, know you can say no.
Another fact about searches is that items in plain view can immediately give rise to either probable cause or reasonable suspicion. For example, if an officer pulls someone over for speeding and, while approaching the window to speak to the driver, notices some drug paraphernalia on the passenger’s seat, the officer can arrest the driver and conduct a search of both the driver and the passenger compartment of the car.
Finally, police are allowed to use drug-sniffing dogs in some limited circumstances, but cannot force a driver to wait too long for the dog to show up. If an officer asks if you mind waiting for the arrival of a K-9 unit, you have the right to say “No, I would like to be on my way.” The officer then will have to either ensure speedy arrival of the K-9 unit or let you go on your way.
If you have pending criminal charges, you need to find a lawyer who will fight for your rights. If unchecked, police and prosecutors will run right over the unwary criminal defendant. Make sure that you have the best available representation. Click here to contact an experienced criminal defense attorney at the Johnson Criminal Law Group.