What is consent to search?

So here’s a common situation. The police just show up out of the blue. They stop by your work. They come by your house. They’re searching for evidence. Now unless that person knows for sure that they’re not a suspect in anything, it’s a really dangerous moment. Trust me on this. They’re there to collect evidence, to search for things, to get a statement from the person at the house. This is a moment where you really have to take extreme caution.

Some investigations are an objective search for the truth. You know, Sergeant Friday, “Just the facts, ma’am.” But more often, there’s going to be flaws in this process, and that’s why you have to be so careful. Sometimes the police, the agents, have shown up, and they’ve kind of already made their mind up about what’s going on. I’m not talking about crooked cops here, though there are some of those out there. Often the police in good faith have already decided who their prime suspect is, and though they think they’re doing the right thing, they’re actually only finding evidence of guilt against the person that they’re investigating because it’s the only thing that they’re looking for at that point.

So how should a person react when that happens? First of all, I’ll talk another time about giving statements to the police. The general rule is you never talk to law enforcement until you’ve already spoken to a lawyer, and usually only if that lawyer is sitting there in the room with you when you do it.

I want to talk today about consent to search. They’re there perhaps to pick up things, evidence of a crime. And I want to talk about consent to search today. If they show up, there’s kind of three things that might be happening there. First of all, they may have a legal right to search. And the person who’s had the visit … They’re not going to have a choice if they come with a search warrant, for instance. There’s no choice at all.

The circumstances or the place that they’re searching actually may create some exceptions, where they don’t need a warrant, but they do still have a right to search. Very often though, the police show up without a search warrant or any other legal basis, and they’re asking for that person’s permission to search, consent to search the place. Why? Perhaps because they don’t actually have a legal basis, and they’re fishing. Maybe because they’ve just been too lazy to take the time to get the warrant. It’s in those situations I want to talk about consent to search.

Some people think that they’re going to get in trouble for saying no. They won’t. Some people think that by angering the police, they may actually make the situation worse. And I suppose that’s true in the short run, but in the long run, the bigger concern is whether some evidence has been grabbed up that looks bad, and puts an innocent person in jail. So we generally say, don’t give consent when that situation arises.

So some people think that refusing to give consent looks bad, makes them look guilty, and those optics are certainly something that needs to be paid attention to. But it’s important to understand that they don’t hurt the case. The Constitution says that you have a right to refuse consent to search something, and it can’t be used against you in the courtroom.

So often we see clients who’ve been charged with a crime. They gave consent to search because they didn’t think the police would find anything when they did do that. Well, they found something, and it ends up being bad for them. Often though, people don’t really understand what might look incriminating after the fact. At the point that somebody’s been charged with a crime and is perhaps facing trial, innocent things can look pretty bad.

Sure, some evidence that you find is like the smoking gun. The drug stash or the gun that you don’t want the police to find, but often the concern comes down to evidence which seemed to be innocent in the first place. The cell phone that got searched. Phone calls between some suspect in the crime and the person who owns the phone right before or right after the crime took place, making them look like a co-conspirator.

Our text and email strings are often long, ambiguous, and sometimes sarcastic. Viewed in hindsight, those things belonging to somebody who’s been charged with a crime, they may not look so innocent, and they may actually suggest guilt where it isn’t there. Other people sometimes leave things behind in a person’s car or at their house, incriminating things that can be attributed to the owner when they really weren’t theirs in the first place.

So the take away here is simple. If law enforcement is doing their job, they’re going to come prepared for a lawful search, bring a search warrant, or a something like that. If on the other hand they show up and they’re looking for permission to search, by in large, the answer should be a respectful, “No thank you.”