When police officers ask you if they may search your car, home or person, odds are that they lack the probable cause required to do so. If you consent, you essentially waive your rights under the Fourth Amendment to the United States Constitution. The question to consider is whether you should give your consent.
You might consent to a search upon request from California law enforcement officials for a variety of reasons. You may feel intimidated by the officer, you may not want to wait for a warrant or you simply didn’t realize that you could refuse. After all, understanding exactly what protections you have under the Fourth Amendment isn’t generally taught in school.
So, what protections do you have under the Fourth Amendment?
Regarding your protections against searches and seizures by government representatives, such as the police, the keyword is unreasonable. Throughout the history of the United States, courts have agreed and disagreed about the meaning of that word. In short, the courts attempt to balance your rights with the obligations of the government regarding public safety.
One of the central factors in whether a court considers a search reasonable depends on where the search occurs. Consider the following:
- Your home: Must have a warrant, unless the owner consents.
If there is an exigency or an imminent threat to public safety, no warrant is needed.
Unless one of the following circumstances exist, law enforcement officials need the warrant to search your home:
- You consent.
- Search Warrant
- You are under arrest.
- Exigent circumstances warrant the search.
- The seized items were in plain view.
- Your car: The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
Police can seize contraband or evidence of illegal activity that is in “plain view”.
The law protects you from unlawful search and seizure when you are in your car by limiting the scope of police authority in the following ways:
- Police may search your car if you consent.
- A search may be legal if evidence of criminal activity provides probable cause.
- Narcotics dogs can walk the perimeter of the vehicle without a warrant.
- An officer may initiate a traffic stop with reasonable suspicion of a traffic violation but may not search your car without consent or a warrant.
- Police may initiate a brief stop to investigate criminal activity on a particular roadway.
- Some states permit drunk driving checkpoints.
- If you cross the country’s border, police may search you without a warrant.
- Your person: Police officers have the right to conduct a pat-down search for weapons when they have a specific and articulable suspicion that the person detained for a traffic violation is armed and dangerous. In order to justify a weapon search incident to a lawful detention or stop, the officers need not be absolutely certain that the detainee is armed. The issue rather is whether a reasonably prudent man under similar circumstances would be warranted in his belief that his safety was in danger.
- Your school: As a student, school officials retain the right to conduct reasonable searches without obtaining a warrant.
Of course, in many cases, whether your search falls into these case law “definitions” may be subject to interpretation. Therefore, you should always question a search, especially if it precedes or follows an arrest.
Understanding the complicated case law surrounding your Fourth Amendment rights often requires the assistance of legal counsel. Since a violation of your civil rights could significantly affect any criminal charges you face, it may be unwise to attempt to go it alone. Involving a seasoned civil rights attorney could mean the difference between living with a criminal record, suffering severe criminal penalties and your freedom.