Clients often ask if I recommend letting law enforcement search their property (car, personal belonging, or home) by consent and without a warrant. The purpose of this short article is to provide some basic guidance in the event that you find yourself in this situation.
Before providing my professional opinion I want to stress that everyone should treat law enforcement with the highest level of respect as they perform one of society’s most demanding occupations. I respect law enforcement, the criminal justice system, and those associated with it but recognize that everyone is entitled to a defense under our Constitution. It is the obligation of our Government to prove a person guilty beyond a reasonable doubt. It is my obligation and professional responsibility as an attorney and counselor at law, however, to provide an individual with the highest level of professional service which means forcing the government to meet that burden. These constitutionally protected obligations allow me to confidently state that no person should ever voluntarily consent to the search of their property at the mere request of law enforcement. While difficult, a person should never succumb to the pressure often exerted and erroneously categorized as “doing the right thing” or “coming clean.” There are three major reasons behind this opinion:
IT’S YOUR CONSTITUTIONAL RIGHT.
The Fourth Amendment to the United States Constitution, as well as the applicable sections of all State Constitutions protect a person’s right against unreasonable searches and seizures. These rights are well established through these important documents and have been practically reinforced since their inception through a countless number of state and federal judicial decisions.
It is unfortunate but people do not realize that searches and seizures, in most situations, require search warrants. Law enforcement can only obtain a search warrant through an affidavit of probable cause. This affidavit requires the review and approval of a judge before a warrant is formally issued. A search warrant requires probable cause.
Probable cause is what the law defines as a fair probability or reasonable basis that a crime was committed or is being committed. It is the legal standard used to obtain a search warrant as well as to arrest an individual for an alleged crime. While law enforcement need probable cause to search your property or arrest you, the law only requires reasonable suspicion to allow a law enforcement officer to briefly stop you when he/she believes you have committed or are committing a crime. The law also allows the officer to lightly frisk you for their own safety. This is commonly referred to as a “Terry Stop” and derives from a 1968 United States Supreme Court decision.
While all persons, regardless of their station in life, enjoy these protections, your consent effectively waives these rights and permits law enforcement officials to act without any regard for these well-established legal principles.
IT WILL NEVER “HELP” YOUR CASE.
Law enforcement is a noble profession but these men and women are trained to convince suspects to cooperate with them during an investigation. While the law does not allow law enforcement to abuse or unlawfully coerce a suspect to provide information or consent, there is no prohibition against persuasion. Law enforcement officers are trained to persuade suspects to volunteer information. In some cases they may even promise to “go easy” on a suspect or “put a good word in” without any real authority to do so.
It is important to keep in mind that consenting to a search will never help your case. In many situations, law enforcement may believe that they have enough evidence to obtain a search warrant but consent permits them to bypass this important part of the process. Forcing law enforcement to obtain a search warrant allows you to maintain your rights which can later permit your attorney to assert those rights through pre-trial motions or at trial.
In those situations where law enforcement does not have enough to obtain a search warrant (necessary probable cause) consent allows them to continue with an investigation which would have otherwise ended potentially without any criminal charges against you.
IT SEVERLY LIMITS YOUR DEFENSE STRATEGY.
Your constitutional rights form the basis of pre-trial motions to exclude evidence. In many cases, especially those involving narcotics or weapons, Motions to Suppress Evidence are extremely valuable defense tools. A successful motion could lead to the complete dismissal of charges before trial, the reduction of the gravity level of an offense (felony to a misdemeanor) or a favorable plea offer. Your consent could potentially eliminate these legal devices and also limit your attorney’s ability to assert certain defenses and legal theories at trial.
Consenting to a search is the worst mistake you can make when being questioned by a law enforcement officer. Not consenting does not mean that you act rude or disrespectful to the officer. I am simply advocating asserting your rights under our constitution in a polite and calm manner. These rights form the basis of our Government, our system of justice, and classifying them as simply “lawyering up” is simply ignorant and does not even justify a response.