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Reminder: You don’t need to consent to a police search

On Behalf of | Jan 29, 2021 | Criminal Defense |

Under the Fourth Amendment to the U.S. Constitution, each of us is protected against “unreasonable search and seizure” by law enforcement. Most of the time, this means that an officer must obtain a search warrant before conducting a search of you or your property. This is to ensure that the officer has probable cause to search you rather than just going on a baseless hunch or simply looking blindly for incriminating evidence.

One major exception to the need for a warrant is the “consent search.” In this scenario, police officers ask suspects if they will consent to a search. They may even preface by saying: “if you have nothing to hide, you wouldn’t mind me conducting a search, would you?” Studies show that the vast majority of people consent to these searches because they view them as a demand or don’t feel comfortable saying no to an authority figure.

Posing something as a question is often a polite way of asking for compliance in a mandatory process. In other words, it’s not actually a request. But if police are asking for your permission to search you or your property (and you are not under arrest), you can – and usually should – say no. If the officer has a search warrant, he either won’t ask or will conduct the search even if you say no. If he doesn’t have a warrant, your consent eliminates the need to obtain one. It also makes you liable for whatever is found during that search.

Whether it is a search of your vehicle or a request to unlock your cellphone, you do not need to give your consent to a search. You do need to comply, however, while making it absolutely clear that you do not give your permission.

Even if you believe that refusing a search makes you “look guilty,” it’s important to remember that there is a huge difference between looking guilty and being guilty. One is merely uncomfortable, while the other has criminal consequences.

When an officer conducts a search without a warrant, he will later be called upon to justify his actions. If he conducted the search despite your withheld consent, there’s a fairly good chance that the search will be deemed illegal. As such, you can file a motion to suppress any evidence obtained during the search – greatly hampering the prosecution’s case against you.