Like most things in life, constitutional rights are not absolute. They are only good if you use them.
There are two instances in which accused people hurt themselves by not exercising their rights. The first is by speaking to law enforcement, or
confessing to a crime without first consulting a
criminal defense attorney. The second is giving police consent to search their home or vehicle.
Let's talk about consent searches.
As you know, the 4th Amendment to the U.S. Constitution protects us against
unlawful searches and seizures. The Founders believed that citizens should be free from unlawful government intrusions while in their homes. Later on, courts applied that same logic to vehicles (although cars are not given the same protections as homes).
So you probably know that if police officers want to search your home, they'd better have a search warrant. A search warrant is an order from a judge authorizing a search of a property. The warrant must adequately describe the property to be searched, as well as the items to be seized.
So if cops come to your house and ask to search it, you have a constitutional right to say, "no." If you say no, they must go obtain a warrant. A warrant can only be issued if a judge finds probable cause. If no PC exists, then the warrant will not be issued.
However, if you give police officers permission to search your home or your car, then you have waived your constitutional protections. These are known as consent searches.
Police may even provide you with forms titled "Consent To Search." If you sign it, there will be further proof that you agreed to a search of your property.
However, consent must be freely and voluntarily given. Since you are waiving a right, you cannot do so under threat of force or coercion.
So if you are dragged out of your house by police, handcuffed, and told to consent to a search or else you will go to jail, that would be a situation in which your consent would not be freely or voluntarily given.
Consent searches usually lead to arrests in cases involving drug possession, drug possession with intent to sell, and drug
trafficking.
If you were arrested due to a consent search, you need to discuss the circumstances surrounding the consent search with your criminal attorney.
Here are some things that you should keep in mind:
1) How many police officers were present when you gave your consent?
2) Were you in handcuffs when you gave your consent?
3) Did any of the officers threaten you prior to your giving consent?
4) At any time prior to giving consent, was a weapon aimed at you?
These are just a few of the things to consider when determining whether consent was voluntary.
To be on the safe side, it's probably wise not to consent to a search of your home or car, especially if you know that there is something inside of your home or car that could get you in trouble. Always be respectful to police, but be assertive. If asked, "do you mind if I take a look around?" Say, "No. I am not giving my consent."
You must be assertive or else a cop could take a shrug, a mumbled response, or a "whatever," as an okay to begin searching. Remember, cops are not concerned about protecting your rights. They just want to make the arrest.
If you tell a police officer that you are not consenting to a search, you have just uttered the magic words. Now they must obtain a warrant, should they have probable cause to believe that contraband is present inside of the car, or inside of your home.
If the cop obtains the warrant, then comply with their requests and contact a criminal lawyer as soon as possible. It is better to challenge probable cause and warrants then to simply give up and allow police to trample on your rights.
The Law Offices of Eric M. Matheny, P.A. is a criminal defense law firm that serves Miami-Dade and Broward. Attorney Eric Matheny is a former Miami-Dade prosecutor and is available by phone to discuss your case. Call today.