by Attorney Eric D. PuryearPolice will often ask a person for permission to search their home, car, or person. It is almost never wise to give such permission, for a variety of reasons.
In order for the police to lawfully search, they need probable cause (under certain circumstances), a search warrant, or consent of the person who is being searched. In cases where police do not have the proper legal authority to search without a person’s consent, they will often ask a person for permission to search.
Some people feel pressured to consent to a search because they want to avoid “looking guilty” by refusing. Police often perpetuate the incorrect idea that a person who is innocent should agree to being searched. Nothing could be further from the truth. By refusing to consent to a search a person does not make themselves appear guilty. Indeed, our legal system presumes everyone is not guilty, even after they are charged with a crime. It therefore makes no sense to think that a person who hasn’t even been charged would appear guilty. Instead, exercising a person’s right to be free from unwarranted government intrusion into their life is as American as apple pie, and fully supported by our legal system and constitution.
Agreeing to a search can prevent a person from being able to later challenge that search in court. The 4th Amendment protects people from unreasonable search and seizure, but a search that is conducted pursuant to consent is not an unreasonable search. Thus, if a person consents to the search they then face a very difficult uphill battle to convince the court that the consent was not really given of their free will, and instead that the police coerced or overcame that free will.
A person who consents to a search may end up facing charges, even if they believe there is nothing in their house, in their car, or on their person that is illegal. For example, a person may consent to a search and the police may find a pill in the bottom of their purse. That pill could be a lawfully prescribed pill that fell out of a pill bottle months ago. With the pill bottle sitting a home, the police officer may choose to arrest the person for unlawful possession of a prescription medication. The fact that the person will later be able to show that the pill was properly prescribed will not undo the unpleasantness of the arrest. Had that person simply refused the search, all of that grief could have been avoided.
There is also the issue of planted of falsified evidence. While most searches conducted by police officers do not result in the police officer fabricating or planting evidence, some do. As an attorney who handles criminal cases in Iowa and Illinois, I have represented clients who were wrongfully accused of a crime by a police officer. Such planting of evidence does happen, and a person who consents to a search runs a risk that the police will plant evidence during that consensual search.
Anyone who is being treated as a suspect or asked for permission to search by the police is well advised to refuse to give consent to the search, to exercise their right to remain silent, and to seek an attorney at once.