The Fourth Amendment to the United States Constitution provides for protection against unreasonable searches and seizures by police. This area of the law is very complex with a rich history of decisions by the United States Supreme Court. Generally, a person is entitled to protection in any place or any thing where the individual has a reasonable expectation of privacy. The term reasonable expectation of privacy includes an individual’s house, car, purse, motel room, and other such places. It can also include telephone calls that you expect to be private.
Another general rule is that the law favors a search warrant that is issued by a judge only after law enforcement can provide probable cause to the judge that the place to be search has evidence of a crime or contraband. Practically, most experienced lawyers believe that warrants are issued far to easily by judges. That is not the subject of this article. The real problem is Fourth Amendment search cases usually come down to the “exceptions” to the warrant requirement.
As I stated the law strongly favors warrants, but there are many, many exceptions where officers do not have to obtain warrants. It would take me to long to list them all. I will provide a few examples. Because of the moving nature of a car, a warrant is not required if the police have probable cause to search a car. The rationale is that the individual could drive the car away while the officers got the warrant. If the police arrest a person and impound his car, they can conduct what is called an inventory search of the car to safeguard any property and protect the police from claims that property was stolen from the individual arrested. When a person is arrested the police can also make a full search of the person, which is called a search incident to a arrest. Lastly, if there are “exigent circumstances” the police can enter a building or house without a warrant. An example of this would be if the police heard a person screaming and they did not have time to get a warrant to go into the house in order to see if someone was hurt or being harmed.
There are many more exceptions. By far the most common and the one that surprises me the most is the “consent” exception. In other words, the police can search anywhere if they are given consent by someone who has the authority to consent. Almost every week a person comes into my office who has been arrested for felony drug charge or a very minor misdemeanor charge, after being stopped by police and after consenting to the serch of the car. I am always curious why someone would decide to carry or use drugs in their car, knowing it is a crime, and when stopped consent to a search of their car. When you are stopped by police you are not required to consent to a search of your car. It does not matter what the officer says. IT does not matter that he does not like your refusal. YOU HAVE THE RIGHT TO REFUSE TO CONSENT TO A SEARCH OF YOUR CAR.
Police officers take classes on how to talk people into consenting to searches. They know ways to talk to make people feel intimidated and guilty. Officers get to practice every day getting ordinary people to do what the police want, even if it is not what the person wants to do. It is very important that when stopped you give the officer your name, driver’s license, registration, and insurance card. You are not required to consent to a search of your automobile or discuss any matters that are personal. You may simple politely decline, stating those matters are personal. If the officer is determined to search your car he may try to come up with an reason to do so, but you will at least retain the right to challenge his search. When you consent, you lose the right to challenge the search in most cases.
The purpose of these articles is to education people on their individual rights so they can make informed legal decision. Merrida Coxwell has 29 years of experience helping people charged with crimes or who suffer serious accidents and injuries. His firm, Coxwell & Associates is located in Jackson, Hinds County, MS, but they practice daily in Ridgeland, The City of Madison, Clinton, Brandon, and all other cities throughout MS.
Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.