Are you required to give Consent to Search? | Refusing a police search
One of the most frequent questions I’m asked is, “When am I required to give consent to the police for a search?”
And the answer is NEVER.
If the police come to the door of your home, and say they smell marijuana and ask to search, you do NOT have to give consent to the police to search.
If the police pull you over for a traffic violation, and ask to search your car for weapons for officer safety, you do NOT have to give consent to the police to search.
If the police stop you walking on the sidewalk, and ask if you mind if they pat you down, you do NOT have to give consent to the police to search.
Ever. Under any circumstances. You are NEVER required by law to consent to a search or to sign a consent form.
Now, let me stop here a make a distinction between Consent, Cooperation, and Not Resisting.
So far, we’ve been talking about consent.
Consent is your voluntary verbal or written agreement to waive your constitutional right to be free from unreasonable searches and seizures, and to allow the police to search you or your car or your bag or your home. It is a waiver of any and all objections you might have under the law.
Cooperation is ambiguous. It doesn’t have a clear meaning. That’s why police will use that term when trying to convince you to consent to a search. They will say “don’t you want to cooperate?” Or they might say “it’ll go easier on you if you cooperate.” And we’ve all been taught that cooperation is a good thing.
But what does cooperation really mean? Does it mean just being polite, which I recommend? Or does it mean letting the police walk all over you?
And then there is NOT resisting. Not resisting means don’t try to tackle the office when he goes to open the door of your car to look inside. That would be a bad idea. Not resisting means don’t try to prevent the officer from putting handcuffs on you during an arrest or detention. Again, bad idea.
Many people confuse these concepts, and don’t make the proper distinction between consent, cooperation, and not resisting.
An example might help.
Let’s say an officer pulls you over for a traffic offense and asks you to step out of the vehicle. Until the officer tells you that you are under arrest, you don’t have to step out of the vehicle. But there’s no real harm in doing so, so you agree and step out of the vehicle. That’s cooperation. You’re not giving up any rights. You’re not doing anything self-incriminating. You’re just cooperating.
But when you got out of the car, you locked the doors behind you and put the key in your pocket. The officer says he detected a whiff of marijuana as you were exiting the vehicle and asks for the key so he can search your car. Notice I said he ASKS for the key. He doesn’t pin you to the ground and take it. He asks for it. That’s consent. You give him the key, and you are consenting to a search of your car. You are giving up your right to privacy. Consent must be completely voluntary. You are NEVER required to give consent. So, you don’t have to give him the key to your car.
Now let’s say when you got out of the car, you forgot to lock the doors behind you and put the key in your pocket. And while one officer is talking to you, another officer opens the door to your car and starts looking inside without your permission. You decide it would be a good idea to NOT go tackle the officer and stop him. That’s NOT Resisting. You’re smart. And you don’t want to be slammed on the ground by 2 officers while a 3d mashes his boot down on your neck. So you don’t physically resist. Again, that’s NOT resisting.
But while that officer is opening the door to your car, you SHOULD verbally and loudly communicate the he DOES NOT have your consent to be doing what he’s doing. Hopefully, body cams or dash board cams will pick that up and there will be recorded proof that you did not consent to the search.
Let’s circle back to where we stared, that one of the most frequent questions I’m asked is, “When am I required to give consent to the police for a search?”
People ask me that question because they or someone they know has had an encounter with the police, a search was conducted, and something like marijuana was found. The State is now going to try to use that Marijuana as evidence in a criminal trial. If the marijuana was found legally, it can be used as evidence in that criminal trial, and a court can use it as a basis for a finding of guilt. BUT if the marijuana was found illegally, in violation of someone’s constitutional rights, it can be excluded from evidence, and a court can NOT use it as a basis for a finding of guilt.
That’s called the exclusionary rule. Evidence illegally obtained, obtained in violation of someone’s constitutional right to be free from unreasonable searches and seizures, can be excluded from court.
Whether a search is legal or illegal depends on the facts of the case. Every case is different. But when you consent to a search, you GUARANTEE that any evidence found will have been found legally, you GUARANTEE that it will be able to be used as evidence in that criminal trial, and you GUARANTEE that a court will be able to use it as a basis for a finding of guilt.
If you refuse to give consent to a search, you give your lawyer an opportunity to challenge the legality of the search on your behalf, and possibly obtain a dismissal.
I’m Kirk Piccione. I’ve been defending criminal cases for over 30 years. If you need help, call me. Our contact information can be founds at kirkpiccione.com.