Searches Based on Consent
Law enforcement officers can search without a warrant under a wide variety of circumstances. Among these, there’s only one situation in which you have any chance of preventing the intrusion—and that’s by saying “I don’t consent” when the police ask whether they can search. This is a powerful tool for using your civil rights, as important as remaining silent and asking to see a lawyer.
The right that upholds your privacy is the Fourth Amendment to the U.S. Constitution, which protects your body, home, papers and possessions from unreasonable searches and seizures. Law enforcement agents are forbidden to violate your privacy unless they have a specific legal justification, such as executing a valid warrant or following a fleeing suspect in hot pursuit. If officers are asking your permission to search, that means that they don’t honestly believe they have one of these lawful excuses—so they’re hoping that you’ll foolishly give up your rights and consent to the search.
An officer’s request to search often sounds like an informal order, as in:
Obviously, if the officer just leaves you alone, you’re in good shape. And even if the officer insists on searching over your objection and finds something incriminating, you’ll have prevented the prosecutor from arguing that you consented to the search—which gives your lawyer a better chance of getting the evidence suppressed, on the grounds that it may have been seized illegally.
When the police imply that you’re hiding something, remember that you don’t have anything to prove. If the police are asking permission to search, that means you’re in the position of power. To use it, all you have to do is say, “I don’t consent.”
Law enforcement agents may try to invite themselves into your house, even though they don’t have a valid legal reason for entering. However, the right to privacy in your own home is very strong,1 provided that you stay alert and say “I don’t consent” when the police ask to come in.2 It’s even easier to do this if you keep the door closed while you refuse to give them permission:
The police will often tell you they don’t need a warrant to come into your house, because they have a legal rationale such as probable cause. That may or may not be true. But it’s always safest to reply: “I don’t consent to your coming in.” This statement cannot harm you, and it will be helpful in court if the police are wrong or lying.
If the police insist on coming in after you’ve refused consent, stand back and let them through the door—but remind them, even as you’re stepping aside, that you still don’t consent to their entering. Do not physically resist the police when refusing consent, because you’re likely to get hurt and charged with obstructing or assaulting an officer.
Sometimes, the police will threaten you or bargain with you, to get you to consent to a search of your home. For example, the officer may say, “Look, if I have to go back downtown and get a warrant, I am not going to be happy. And if that happens, by the time I get through searching, this place is going to look like a hurricane hit it.” This isn’t meaningful, because the police normally trash your house anyway when they search. You can expect your home to be “tore up from the floor up,” so you might as well refuse consent and see whether the officer can actually obtain a warrant.
What’s really scary is when the police threaten to take your kids or pets away, if you don’t consent to a search. The less-subtle threats sound like this:
Whatever the threat is, you shouldn’t consent to let them in. If the police don’t come back, then they couldn’t really get a warrant and you’ll have called their bluff. If the police do come back, you’ll at least have had time to call friends or family to come get your children or pets. And you’ll have been able to call a lawyer for advice or help during the search.
It’s critical that all the people who live in your home, including temporary houseguests, understand that they must not consent to let the police enter or search. (Your door chain is only as strong as its weakest link.) The police can rely on consent from anyone who appears to be a resident or lawful user of the property. So you have a real problem if the person who answers the door is just a friend who came to dinner, who doesn’t know to say, “I don’t consent.” One way to prevent accidents is to post instructions inside, on or near the door, stating:
If you’re a tenant, your landlord is not entitled to let the police enter your home without a warrant, unless there’s a provision in your lease authorizing the landlord to do so. So, if you rent, check your lease. Look for a sentence or two that says something like:
– or –
– or –
Such clauses allow your landlord to consent to officers’ entering your home, whether you agree or not.