What Happens If The Police Want To Conduct A Search?
When interacting with the police, it is important to know your rights, especially if the police suspect that you have committed a crime. Many Americans are intimidated by police officers, and wish to appear cooperative so as to avoid causing suspicion. Unfortunately, when issues involving consent and searches are involved, this desire to appear cooperative can lead a person to act against his or her own interests.
When is consent an issue?
The Fourth Amendment of the U.S. Constitution protects individuals from “unreasonable” searches and seizures. A search that is considered “unreasonable” will violate the suspect’s Constitutional rights, and the evidence seized during that search will likely be ruled inadmissible, and therefore cannot be used against a defendant in a resulting criminal trial.
Generally, in order for a search to be considered reasonable, law enforcement officers conducting the search must have probable cause. Officers are required to show probable cause in order to obtain a warrant to conduct a search; searches conducted on the basis of a warrant are generally considered reasonable. Without a warrant, there are a limited number of situations in which an officer can conduct a search without violating the Fourth Amendment, and some of those (such as a search “incident to arrest”) also require probable cause. However, there are a few narrow exceptions to the probable cause requirement, and one instance in which officers are not required to have probable cause is if the subject of the search consents to the search.
Under the consent exception to the Fourth Amendment, a search will not violate a person’s Fourth Amendment rights if that person gave his or her consent to the search and allows law enforcement officers to conduct the search. By giving consent, a person is considered to have waived his or her Fourth Amendment rights.
The Consequences Of Giving Consent
There are many situations in which people may find themselves interacting with law enforcement officers who ask to conduct a search. For example, officers who are conducting a traffic stop for something like a speeding violation may ask to look through the driver’s car or trunk. When someone consents to a search, then he or she loses the ability to raise any Fourth Amendment challenge to the search. This means that evidence that might have otherwise been excluded or unusable during a trial, due to a violation of the Fourth Amendment, will be admissible during a trial.
If a law enforcement officer asks to conduct a search, the subject of the search can refuse consent and not allow the officer to conduct the search. If the subject of the search refuses consent, the officer will need to obtain a warrant or find some other exception to the Fourth Amendment in order for the search to be proper. If the officer lacks probable cause, or has no other exception to rely upon, then it is possible the officer will abandon any attempt to conduct the search at all. Even if an officer conducts the search anyway, the subject of the search, by refusing consent, has not waived his or her Fourth Amendment rights and will be able to challenge the results of the search. In that case, if the search is found to have violated the Fourth Amendment, anything found during the search will not be admissible in court.
It is important to keep in mind that in the midst of a stop by law enforcement, it may be very difficult to know if an officer has probable cause or not – generally probable cause is based upon the information available to the officer, which may include information from an informant, reports from other officers, and other sources that may not be available or obvious at the time the police interaction occurs. Also, even when consent has been refused, it is possible that there is some other exception to the Fourth Amendment that makes the search appropriate.
If you or a loved one has been searched by the police and have questions about your rights, contact the experienced Florida attorneys at The Baez Law Firm for a consultation today.