Consent to Search—Your Right to Refuse

police officer

(Image Credit)

If you have ever been pulled over by a police officer or had a police officer show up on your doorstep, you know just how nerve-wracking the experience can be.

If you were asked by the police officer for your permission to search your car or home, you may have been unsure of the “right” answer.

It is important that you understand you do have the right to refuse such a search—unless, of course, the officer has a valid search warrant in hand.

Unfortunately, many officers “ask” whether a person will consent to a search in a manner which leads the person to believe they cannot refuse.

The Fourth Amendment was created to protect Americans from unlawful search and seizure, therefore if you are asked whether you consent to a search, state clearly that you do not give the officer permission to search your vehicle or home.

What if the Officer Ignores Your Refusal to Search?

In some instances, the officer may ignore you, and search without your permission—and without a warrant. If this happens, the worst thing you can do is let your (understandable) anger show through. Repeat as often as necessary that you do not give the officer permission to search your vehicle or your home. Since many police cars are now equipped with cameras, and some departments are issuing body cams as well, your refusal for the search will hopefully be caught on camera.

At this point, if you are in your car, you can ask the officer whether you can leave, or if you are being placed under arrest. The officer will either give you permission to leave—in which case you should do so safely, but quickly. If the officer refuses to allow you to leave and begins to ask you questions, assert your Fifth Amendment right by stating you will not answer any questions until you have an attorney present. At this point, you might ask again, whether you can leave, or if the officer is placing you under arrest.

What is a Warrant?

If the police officer has a warrant with a judge’s signature which gives permission for the officer to search, make sure you read the warrant, and watch carefully to ensure the officers don’t extend their search area beyond the scope of the warrant. Warrants are generally very specific. To obtain the warrant, the police would have had to convince a judge there was reasonable evidence to suggest you were hiding drugs in your basement. If the judge was convinced, the warrant would specifically state where the officers could look in your home—in your basement only. This means that unless there happens to be evidence of a crime in plain view, the officers can’t decide to look in your attic, or your garage, or anywhere else not listed on the search warrant.

Warrant Exceptions

There are exceptions to the requirement of a warrant to search your car or home. These exceptions include:

  • Probable cause to believe a criminal act is in progress. This means if the police are searching your basement, but hear a gunshot in the upstairs laundry room, they don’t need a warrant to go into the laundry room and see what is happening.
  • Exigent circumstances—Any time the police feel that the time it would take to secure a warrant would jeopardize public safety or lead to evidence loss, they can engage in a search.
  • Consent—Obviously, if you voluntarily allow the police to search—with no coercion involved—then they are allowed to look anywhere they choose with no search warrant. Landlords may not give consent to the police for a search of the tenant’s belongings, and a spouse may not give consent to the police to search the marital home on behalf of their husband or wife. An employer can give consent to search a business, including the employee’s work area—but not for the employee’s personal belongings.
  • If an arrest is made, no warrant is necessary to look for evidence in conjunction with the arrest. Should you be placed under arrest for drug possession at your home, law enforcement has the right to search your home, your person and your vehicle. If the police believe you may have an accomplice who represents a threat to the police or the public, they have the right to perform a “protective sweep” following your arrest. During this protective sweep, any evidence which is in plain view can be seized.
  • Plain view doctrine—this allows police officer to legally search and seize evidence any time it is clearly visible. As an example, if you are pulled over for speeding, and the police see a bag of drugs on the passenger seat, they can conduct a search with no warrant.

If you believe your Fourth Amendment rights were violated, through an illegal search and seizure, it is important that you speak to an experienced Mississippi criminal defense attorney as soon as possible to ensure your rights are properly protected.

Contact Our Jackson Criminal Defense Lawyers

If you believe that your home was illegally searched or if you believe the police violated your rights when making your arrest in Jackson, Hattiesburg, Meridian, or anywhere in the State of Mississippi, the best thing you can do is to contact an experienced Mississippi criminal defense attorney who will protect your rights to a fair trial and safeguard your future.

At Coxwell & Associates, PLLC, our attorneys believe that everyone is innocent until proven guilty and we work tirelessly to ensure that your rights are protected throughout the process. Contact Coxwell & Associates today at 1-601-948-1600 or 1-877-231-1600.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

Contact Information