The Fourth Amendment of the United States Constitution guarantees an individuals right to be free from unlawful search and seizure. A search is presumed to be unconstitutional unless it is conducted pursuant to a warrant issued upon probable cause describing specifically what's being sought and where it will be found. Not surprisingly there are numerous exceptions to the warrant requirement.
One of the most, if not the most, important exceptions is consent. If a person consents to a search, that individual has waived his Fourth Amendment protections guaranteed under the United States Constitution. The problem is that most people don't think that they have got a right to say no. If a police officer orders you to step out of your car so he can search your car, you need to obey the officer. If you should wind up getting arrested and there is a problem with the search, let your lawyer handle it.
It is quite a different story when the officer asks you for permission to search. Often the officer will ask someone if the person has anything illegal within the car. If the person says no, the officer then says "would you mind if I search?" You've got a constitutional right to tell that police officer no. If there isn't a legally valid reason to search your car, house or person, the police officer is prohibited from conducting a search absent your consent.
There are numerous reasons why you ought to never consent to a search. From a moral perspective, some feel that it is an insult to the men who fought and died for your 4th Amendment right in the United States Revolution to simply give it away because you feel that you don't have anything to hide. The author is among those with that line of thought. However, why are you going to let the police embark upon a fishing expedition through your car, pockets or house? If the officer finds a seed that he subjectively believes is a marijuana seed, you will have just created a big problem for yourself that will only be resolved after spending money on an attorney and having your mugshot plastered online with the caption "possession of marijuana" under your name. This problem could have been avoided with a simple "no."
Using logic, the police are only going to ask you for consent to search when they suspect they will find something, but don't yet have grounds to conduct a search without a warrant. If you decide you give them the permission to search and the police locate something, it'll absolutely devastate any 4th Amendment defense that you have to a search since the basis for the search isn't "hunch," but rather "consent."
Some people also believe that permitting the search will allow them to assert ignorance when something is located. The line of thought is "Why would I consent to a search if I knew something was present?" Not only has that individual waived their right to object under the Fourth Amendment, but he or she has also created an argument that almost no jury will ever believe. To be very clear, nobody will ever believe that you didn't know that you had crack in your pocket. Nobody will ever believe that you did not know about the eight ball of cocaine and handgun underneath the driver's seat in your own personal car. Contrary to what people may have heard and/or believe, the contraband does not have to be physically on your person in order for you to be arrested. Close physical proximity is usually enough for an arrest.
To avoid all of these problems, if the police officer orders you to submit to a search, obey the officer. If the police officer asks you to submit to a search, always say no. If you are unsure to whether you have a choice, you can always say something to the effect of "in case you are asking me to consent to a search, the answer is no, I will not consent. If you are ordering me to submit to a search, I'll follow your order."
Michael Dye is a Criminal Defense Attorney located in Fort Lauderdale, Broward County, Florida. For more information, please call (954)745-9848 or visit http://alcoholanddruglaw.com/.
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