If a police officer asks you if he can search your person or car, can you refuse? Absolutely! It is just amazing that many people don’t realize this and agree to being searched even when they have contraband on them. The “Officer, these are my friend’s pants,” defense really doesn’t work too well once the police have found something illegal in your pockets.
Why not just exercise your rights and avoid the search in the first place?
The first ten amendments to the Constitution of the United States, commonly known as the Bill of Rights, guarantee various rights and protections to all persons in the United States, regardless of citizenship status. The Fourth Amendment guarantees freedom from unreasonable searches and seizures. The Fifth Amendment guarantees due process under the law and freedom from forced self-incrimination. The Sixth Amendment guarantees a jury trial with the assistance of counsel to anyone accused in a criminal case.
The Fourth Amendment requires a police officer to have a warrant in order to arrest someone or to search a person or place. The situation could permit search or seizure without a warrant, but probable cause must always be present.
A warrant is a document signed by a judge allowing an arrest or a search for particular listed items. To get a warrant, the officer must present the judge a sworn statement establishing probable cause.
Probable cause exists when the circumstances confronting the officer are such as to give a reasonable person a strong suspicion that a crime has been committed. The officer must be able to recite specific facts. The Fourth Amendment prohibits searches and seizures based on suspicion or hunches.
If the thing to be searched or seized falls into one of a set of recognized exceptions, no warrant is needed. Probable cause, however, is still required. For example, there are exceptions for car searches due to a car’s inherent mobility, exigencies such as imminent destruction of evidence, other such circumstances and consent.
This is the reason the police ask for consent to search. With consent, they don’t need probable cause or a warrant! A police officer may ask, “Do you have anything illegal, like drugs or weapons in your car? May I look and make sure?”
Whether or not you have anything illegal in the car, you have the absolute right to refuse. If they search anyway and find something illegal, your attorney may be able to suppress the results of the search.
Remember, the police can’t search unless they have probable cause. Always ask to see the warrant.
Next month: Constitutional rights from the Fifth and Sixth Amendments.
Naresh Rajan is an attorney in San Mateo County. Email [email protected]