Police Search and the Law of Consent

The Fourth Amendment to the U.S. Constitution protects us from unlawful police search and seizure. Over the years many courts have addressed the issue of what the police can and can’t do when it comes to searching your person, car, home or business. But all of the rules go out the window if you give the officer permission to perform the police search. Oftentimes an officer will try and bully you into letting them perform a police search by saying things like “if you don’t have anything illegal, you won’t mind if I perform a search, right.” Or, “If you don’t give me permission I will just call in for a warrant and we will be here for a while.” Don’t succumb to their pressures, no matter how persuasive the officer may be. Generally speaking, no good can come from allowing an officer to perform a search. The best-case scenario is that the officer doesn’t find anything and you are no better off than you were before the search. Often the officer may discover something illegal that you didn’t even know was there.

If I Don’t Consent, Can They Still Perform the Police Search?

Just because you decline to consent to a search doesn’t mean that the officer won’t be able to perform the search. There are many instances when an officer can perform a search without your permission. For example an officer is allowed to search you or parts of your vehicle for a gun; or if you are put under arrest. The key is that if you never consent to the search, the officer will have to justify the search if your lawyer challenges it’s legality. If the search is determined to be improper, typically anything discovered as a result of the search can’t be used against you in court.

School Police Search

The rules about searches aren’t just for police officers. Generally, the same rules apply to any government agent such as mail carriers or public school employees. That means that students at public schools have many of the same protections from unreasonable searches by teachers or staff. For example strip searches at school are never allowed and the school could be liable for money damages if they perform one.

Drug tests are considered a form of search. In a school setting, with a few exceptions, there has to be a reasonable suspicion that the student is on drugs in order to allow them to require you to take a drug test.

This article barely scratches the surface of the law surrounding police search and seizure but the important thing to take away is that it generally isn’t a good idea to consent to a search and thereby waive your constitutional protections even if you genuinely believe there is no risk in doing so.

ABOUT THE AUTHOR

Dominic Braus

Attorney and Counsellor at Law

Dominic primarily practices in the areas of civil litigation and focuses his practice on defending the rights, property, and interests of those who have been injured by the actions of others.

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