I previously wrote about the “Stop & Frisk” being one of the recognized exceptions to the requirement in the Fourth Amendment that the police obtain a warrant before they can search you or your property. Well, another of those exceptions is consent. Just like your rights under the Miranda Rule or any other constitutional protection, you can waive, or give up, your right to have the police go get a warrant.
But why would you?!
Let’s say you are driving home at night and, unknown to you, one of your car’s taillights has burnt out. A police officer pulls you over based on the probable cause that you have violated the Vehicle Code statute requiring all your lights to be in operative condition.
The officer walks up to your car and speaks to you through the window. (The officer chooses which window he or she wants to use.) You are informed about the light problem but the friendly officer says you are only going to get a warning so you can get it fixed. You’re happy you are not getting a ticket and, besides, you want to get the taillight fixed for your own safety.
During the exchange, the officer, of course, will ask to see you driver’s license, the car’s registration, and your proof of insurance. If they are expired or don’t exist, you risk walking home.
Your name will also be called into the police dispatcher to see if you have any open arrest warrants. If you do, and depending on the original crime, you may be required to sign a Promise to Appear or be arrested and taken to jail.
This night, however, everything is current and you have no warrants. After the officer has you sign the warning, he or she asks in the same friendly tone, “You’re not carrying any bombs or bazookas today, are you?” You laugh and say, “Of course not, Officer.” The officer, still smiling, says, “Then you wouldn’t mind if I had a look inside your car, would you?”
You’re a law-abiding citizen. You’re trying to be cooperative. You feel indebted to a certain extent because the officer only gave you a warning. So, like a dummy, you say, “Sure, Officer, go ahead.”
The officer explains he can’t have you standing behind him while doing the search so asks you to stand on the curb or back with his “cover” officer. Again, you agree.
Maybe the officer searches your car, finds nothing, says “thanks,” and sends you on your way. You drive off thinking how nice the officer was and what a cooperative citizen you are.
Maybe, instead, the officer finds a baggie of coke or meth dropped by your daughter’s shady boyfriend or that old high school buddy you gave a lift to last week. Maybe it’s an envelope of child porn photographs your brother-in-law left in the glovebox after you let him “borrow” your car. What are you going to say? “Gee, Officer, I don’t know how that got there. It’s not mine.”
Do you think there are any cops who haven’t heard that alibi from half the crooks they arrest? Do you think you are not going to be arrested? Think again – and then call me or any good criminal defense attorney.
Better yet, know your Constitutional rights and don’t just give them away because you want the police office to think you’re a nice person.
If a law enforcement officer asks you for permission to search your car and you are still trying to be polite, what’s the matter with just saying, “No, I’m sorry, Officer, I’m late for an appointment, for work, for picking up the kids, etc.?”
Or, if you foolishly threw away your constitutional right and gave permission, you can take it back! Just say, “Oops, sorry, Officer, please stop. I just realized I’m late for this or that. I’m going to have to take off.” The officer may not like it, but he or she will have to stop. If, by chance, the officer stumbled across something illegal in your car after you withdrew consent, it could not be used against you in court.
I will continue this topic next week when you will learn how the police will try to get consent to search your house without a search warrant. Until then, feel free to contact me through my website about any questions on the criminal law or, if you have been arrested, call me directly at 619-431-1076.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.