As a criminal defense attorney I represent a lot of clients who are at risk of evidence being presented against them in a criminal trial that is the result of a search by officers of either their person, vehicle, house or cell phone. Usually, the police officer states that the person gave them consent to search. Many people don't know that they have a right to refuse an officer's request to search. However, they fear that an officer will arrest them or worse if they don't comply with the officer's requests. Here are some practical tips on how to interact with police officers and to mitigate your chances of being found guilty of a crime if you are searched.
First: Always be courteous to a police officer. Police officers have a hard job. They work long hours and they are always at risk of being harmed in the line of duty. You may feel that it is a hassle that the officer is pulling you over. It may interfere with your day or prevent you from getting where you want to go on time, but not being courteous will only extend the stop. Second: Being courteous doesn't mean give up your rights. No matter what happens, do not consent to a search and do not answer any question the officer is asking in terms of his or her investigation. An officer can ask you a question such as, "How are you doing tonight?" or "Can I have your license and registration please?" or can chit chat with you about the weather. Go ahead and say, "Fine," or "I can't wait for more rain," and make sure you give them your license and registration. However, once an officer asks you a question such as, "Do you know how fast you were driving," or " How much did you have to drink tonight?" they have stopped chit-chatting and have begun an investigation. Under your Fifth Amendment right to not incriminate yourself, you don't have to answer those questions. You can say something to the effect of, "I invoke my fifth amendment right to remain silent; and I'd like to talk to my lawyer." This may make the police officer angry, but he or she is angry because you're making their job harder; don't take it personally. They can't arrest you simply because you refuse to talk to them. Similarly, they will ask you if it's okay if they search you. Simply say to them that they cannot and that you refuse to give them consent to search. This does not give them cause to search you. What it does is protect you later in court if the officer searched you and did not have probable cause to do so. Under the Fourth Amendment to the US Constitution, you have a right to be free from unreasonable search and seizure. This means that officers can't search you without a warrant or unless a warrantless exception exists. If you give them consent to search you, they don't need a warrant. They will most likely be angry, because you're making their job harder. And they will search you anyway. If they do try to search your wallet, purse, jeans, vehicle, home, etc... do not stop them or resist. Simply iterate that you do not consent to the search. Anything they find as the result of an illegal search can't be used against you in a trial.
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AuthorJason Tauches is an attorney and writer who lives in Massachusetts. Archives
December 2015
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