In criminal law, a search is an inspection of a person’s property, personal belongings, body, or other area in which a person could reasonably expect to keep private and is conducted by law enforcement.
The Fourth Amendment of the U.S. Constitution is the primary source of law that is meant to protect people from unreasonable searches and seizures performed by law enforcement.
In general, the Fourth amendment provides that a police officer must have probable cause to carry out a search or obtain a search warrant. However, there are some exceptions to this rule.
What are Some Examples of When the Police Need a Search Warrant?
Some of the places that should be afforded a reasonable expectation of privacy according to case law include:
- Homes (such as apartments, single-family houses, and in some instances, even motor homes or house boats);
- Certain parts of a motor vehicle (e.g., areas that are locked (like a trunk) or closed containers in a car, but this will vary by the laws of each jurisdiction);
- Hotel rooms or a residence in which one is staying as an overnight guest;
- Specific public places, such as a restroom stall.
What is a Consensual Search?
A consensual search is when a person gives law enforcement permission or consent to search an area in which they have a reasonable expectation of privacy, such as their home or property.
In addition, a consensual search is one of the exceptions to the probable cause rule mentioned in the first section. The exception provides that if a person gives consent to the search, then the police will not need a search warrant, even if the person has a reasonable expectation of privacy in the place or item to be searched.
As an example, suppose the police knock on the front door of a person who is a suspect of criminal activity and they ask the suspect if they can search their house for drugs. If the suspect consents to this search, then the police are allowed to search their home without having to obtain a search warrant to do so.
Moreover, the police will not need probable cause either if the suspect gives them consent to search.
What are the Requirements for a Valid Consensual Search?
In order for law enforcement to conduct a valid consensual search, the person whose property or body is being searched must voluntarily waive their Fourth Amendment rights.
According to this amendment, their waiver must be stated clearly and unambiguously. Their consent must also be given in a willful manner, meaning not under duress or coercion (e.g., the police cannot say they will be arrested if they do not consent to the search without a warrant).
It should be noted, however, that the police do not need to inform a person that consent is voluntary. Thus, it is important to keep this fact in mind. Many individuals might feel that they need to allow the police to search, even if they don’t want to, under the belief that they can be arrested if they refuse.
For instance, if a person is driving a vehicle and the police pull them over to ask if they can look inside the person’s trunk, and then that person responds “yes” and opens the trunk, then their actions will be considered a valid consensual search. It does not matter whether the person knew they had the right to refuse the search or not.
Can You Revoke Your Consent to a Search?
A person is allowed to revoke their consent to a search at any point after they have already consented. Like the form of consent, revocation must also be done in a clear and unambiguous manner and the revocation must be communicated to the police officer conducting the search.
Returning to the example above in which a person’s trunk was searched, if the police officer is moving stuff around in the trunk of the person’s car and they respond, “That is enough. I am revoking my consent and closing the trunk, so please stop searching,” then they have sufficiently revoked their consent to the search.
Again, the revocation must be stated as a clear withdrawal of their prior consent statement, rather than a vague disapproval or a negative remark regarding the search. There is a vast difference between saying, “I revoke my consent” versus “I really would prefer it if you did not look in my trunk any longer.”
On the other hand, there are some situations where consent cannot be revoked once a person has given it. This applies in very limited circumstances, such as when a prisoner has consented to a search of their jail cell.
If law enforcement does not follow proper procedures or conducts an unreasonable search without valid consent or a valid search warrant, then any contraband found as a result of the search cannot be used as evidence to support a conviction at the defendant’s criminal trial.
What If I Think Police Violated My Fourth Amendment Rights?
If a person believes that their fourth amendment rights have been violated due to a search by law enforcement, then they should seek legal counsel.
For instance, if a person did not consent to a search, but law enforcement searched their home without consensual consent or a valid search warrant anyway, then this situation may give rise to an unlawful search.
Again, law enforcement searches or seizures that violate a person’s Fourth Amendment rights will be considered to be unlawful, meaning that any evidence obtained will not be admissible in court or as evidence of their crimes.
Do I Need to Hire an Attorney for Help with Consensual Search Issues?
A criminal law issue, especially issues relating to the Fourth Amendment, can be a complex matter to handle without legal assistance. Thus, if you believe that a police search has violated your Fourth Amendment rights, then you should contact a local criminal defense lawyer as soon as possible.
An experienced criminal defense lawyer will be able to ensure that your rights are adequately protected and can give you the best odds for a successful outcome should your case go to trial. A lawyer can also help to resolve the issue before it even reaches the point of having to go to court.