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Mythbusting #3- Just Say "No": You Do Not Have To Consent To A Search

When the police ask me if they can search my person/bag/car/home, do I have to let them?

Absolutely not.

As a criminal defense attorney here in State College, Pennsylvania, I have represented countless individuals who have been charged with the possession of illegal items found on their person, in bags they were carrying, in their vehicles, or in their homes. These items include drugs, drug paraphernalia, stolen or unlicensed firearms, instruments of crime, stolen property, etc. In some cases, these items are recovered following the execution of a search warrant or the arrest of an individual (after police arrest you, they are allowed to search your person and even your vehicle incident to the arrest). However, in many cases the items were recovered from my clients following a "consent" search. Simply put, my clients allowed the police to conduct the search that ultimately revealed the forbidden items. But what exactly is a "consent" search and why would anybody allow the police to search if they knew there were illegal items to be found?

As with all questions concerning police-citizen encounters, in order to understand the answer we must begin by turning to the text of the Fourth Amendment to the United States Constitution 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.

With this language, the framers of the Constitution provided one of the most basic, fundamental rights that we enjoy here in the United States. Simply put, governmental agents are not allowed to conduct investigatory searches without a warrant that is supported by probable cause to believe that prohibited items will be found. This protection is premised on the idea that we all enjoy an expectation of privacy in our persons, homes and various other protected places.

Over the years, however, the Supreme Court of the United States has recognized numerous exceptions to the "warrant requirement" that allow police to conduct investigatory searches without warrants for various reasons. Police know these exceptions and are trained to use them effectively. One such exception to the warrant requirement is the "consent" exception. According to the Pennsylvania Superior Court:

The requirement of a warrant is dispensed with where a search and seizure are conducted pursuant to valid consent...

Com. v. Quarles, 324 A.2d 452, 460 (Pa. Super. 1974).

The policy underpinning this exception to the warrant requirement is simple-if you are willing to consent to a warrantless search of your person/vehicle/home, then you have no expectation of privacy in those areas.

Police are trained to intimidate-to project what is called a "command presence." Anyone who has had an interaction with police knows that when an officer has stopped you for investigatory purposes they do not say things like "Sir, would you please allow me to search your pockets? You can say 'no', but it would be helpful to me if you would just say 'yes.'" Rather, police will say "sir, I'm going to need to search your pockets now, ok?" Technically, the police are asking. In actuality, it feels like an order. Moreover, police will take it one step further by saying things like "I'm only trying to help. If you give consent, I can help you. If you don't, you are on your own."

Remember, when you are being investigated by police they are not trying to help you. They are trying to find evidence that they can use against you.

You have an absolute right to refuse to consent to a search. Do so politely, but forcibly: "Officer, I do not consent to searches." It's that simple. As a practical matter, this may not prevent the police from moving ahead with a (potentially illegal) search or a warrantless search based on some other exception to the warrant requirement, but by refusing consent you have closed the door that police most often use to obtain evidence without a warrant.

Remember: "Officer, I do not consent to searches."

The following videos illustrate this concept and some other concepts very well. Be polite, but confident, and be very clear in your answers.

As a State College defense attorney, I have represented countless people charged with crimes ranging from very minor offenses to violent felonies. In almost all cases, I will have to answer questions put to me by my clients about the way they were treated by the police. More often than not, my answers surprise my clients who typically have some serious misconceptions about what the police are and are not allowed to do. Not only have I devoted my professional career to understanding the permissible contours of a police-citizen encounter, I also had the privilege of teaching a class on this material at Tufts University , a prestigious school outside of Boston, Massachusetts. This article is the third in a series of articles discussing what police are and are not allowed to do. 


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