The U.S. Constitution provides us with legal protections that limit a police officer’s ability to search us or our property. Use these protections—never consent to a search without a warrant (unless you want to expose yourself to misconduct, such as police planting evidence).
However, there are a number of situations where the police can search without our consent.
So when can police search us or our stuff?
Like many of our civil rights, your right to be free from unreasonable searches is based on the Fourth Amendment to the United States Constitution, which states as follows:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.“
The general rule is that police officer may not search you or your property without a search warrant.
| What is a search warrant? A search warrant is a written document signed by a judge that describes with particularity the area to be searched, and the items to be searched for. An officer obtains a search warrant by articulating probable cause that specific items at the place to be searched constitute evidence of criminal conduct. The search warrant is based on a sworn statement, either by an officer or someone else, such as a confidential informant, that contains specific facts to support probable cause. |
However, there are exceptions to the warrant requirement.
Here are some of the most common exceptions:
This is the most relevant exception for you, because whether to consent to a search is your choice. If an officer doesn’t have a legal basis to search your property, such as a warrant, he may ask you for consent to search. Sometimes he’ll ask you to sign a Consent to Search form. Other times, he may just casually say, “You mind if I take a look in the trunk?”
If you consent to a search, you lose a very important legal right. Once you consent, you will never be able to contest the legality of the search. So, let’s say an officer claims to find some illegal substance in your trunk – maybe marijuana. You will still be able to argue that the marijuana wasn’t yours, that you didn’t know it was there, or that the officer placed it there immediately before he “found” it. But if the search was illegal, you don’t have to worry about that, because the evidence will be suppressed (i.e. excluded), and cannot be used against you. But if you consented to the search, you cannot argue that the search was illegal.
There is no reason to consent to a search. The officer would not ask you for consent if he had a legal basis to search. So if the officer asks for consent, no matter how he asks, it means he has no probable cause to search your property. The smart move if you’re asked to consent to a search is to say, politely, “I’m sorry, I don’t consent to searches.”
If you refuse consent, and the officer searches anyway, do not interfere with the search. Wait until later, when you can make the argument in court. This is just like a wrongful arrest: comply first, complain later.
During a lawful arrest, an officer may conduct a limited search of your person or the immediate area from which you may be able to obtain a weapon or destructible evidence.
Similarly, the police can use a dog sniffing “search” as long as the dog is trained only to search for contraband such as illegal narcotics, for which the Supreme Court says citizens have no legitimate privacy interest. So, even if there is no reasonable suspicion that there are drugs in someone’s car, the police can still use a drug dog to do a sniff search during a lawful traffic stop. However, if the officer does not already have a drug dog with him, he will need reasonable suspicion to detain you while you wait for the dog to arrive — unless you consent to a search.
An officer may seize any item that can be easily observed without equipment and without opening anything, like a trunk.
One common example is a gun on top of a dashboard or on the front seat of a car that can be seen through the car’s windshield. However, the officer must have a legal right to be in a position to see it in the first place. For example, an officer may not illegally enter a home and then seize an item he sees on the bed.
Officers may enter private property and conduct a search without a warrant under exigent circumstances, which may exist when there is an immediate need for officers to conduct a search.
For instance, if officers reasonably believe someone’s life is at stake, or that the suspect may be arming himself and endangering officers’ lives, or if officers reasonably believe evidence will be destroyed or moved if they do not conduct an immediate search.
An officer may temporarily detain a suspect if he has a reasonable suspicion that the person is involved in criminal activity. If the officer has reason to believe that the suspect may have a weapon, the officer may conduct a limited search, or “frisk” the suspect.
The police do not always need a warrant to search you or your property, but they cannot search without a legal basis or your consent.
Consenting to a search deprives you of the ability to challenge the legality of the search. You are surrendering a crucial Fourth Amendment right. There is no good reason to consent to a search. Refusing to consent does not suggest that you’re guilty of a crime. It means that you know your rights and you value those rights.
If you think you might have been a victim of a false arrest or an unreasonable search, contact Chicago civil rights attorney Jordan Marsh for a free consultation at (224) 220-9000, or at jordan@jmarshlaw.com.
The information provided on this website does not, and is not intended to,
constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Use of and access to this website or any of the links contained within the site do not create an attorney-client relationship between you and our office.