The Constitution (Part 1, “Just Say No”)

I meet with so many people who say that they allowed the police to search their car, house, pocketbook — even their own person — “because the police asked if they could.”  And the general sentiment is that when the police ask to search anything, “you have to say ‘Yes.’”

Not true.

Now, the police might have other reasons allowing them to search regardless of how you answer, but most of the time they aren’t asking just to be polite; they’re asking because they have to obtain your consent to proceed with the search.

When you say “yes” to a search, you are waiving your constitutional right against unlawful search and seizure guaranteed to you in the Fourth Amendment to the U.S. Constitution:

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 Fourth Amendment was enacted in response to Great Britain’s use of “general warrants” in Colonial America.  In essence, the British could search anyone, anywhere, at anytime, and without having to show facts supporting the necessity of the search.  This did not sit well in a land where “every man’s home is his castle.”

Many times, a search warrant is not required priorto a search, and probable cause justifying the search can be found by a judicial officer after the search takes place.  Most notably, these circumstances include a search of a person incident to arrest, search of a motor vehicle, border searches, evidence in plain view, exigent circumstances (such as when the police are in “hot pursuit” or there is a risk that evidence will be destroyed), and of course when a person consents to a search.

I am not suggesting that anyone should be uncooperative with the police.  After all, they risk their lives everyday to protect us.  But too many people have forgotten that they do have certain rights under the Constitution.  Future posts will explore those rights in more detail.