Fourth Amendment Exceptions – Consent
This is the third part in my series of posts on Fourth Amendment Exceptions. The Fourth Amendment requires police officers to get search warrants from a Judge when they want to search you, your home, your car, your office, etc… If you remember from previous posts, Fourth Amendment Exceptions are situations where police don’t need to get warrants. The previous two posts were the exceptions of 1) Exigency, and 2) Search incident to arrest.
What is consent? Can I search your car/house/pockets?
Consent is the legal term for “permission.” When you give someone consent, it means you give them permission to do something. It may also mean that you know what you are agreeing to and what the likely consequences may be. When we’re talking about the Fourth Amendment, police usually ask people something like “is it OK if I search your car?” or “I’m going to need to you to step out of the car so I can search it.” This “I’m going to need you” phrase is their way of carefully hiding or disguising the question. What police are really saying is “can I search your car without a warrant?”
Most people put in that situation will allow the police officer to do whatever they want. I get it… You’re afraid. You’re nervous. You think things will turn out worse if you tell the police officer NO. It won’t turn out worse if you tell the officer – NO. Never let the police search anything or anyplace without a warrant. Make it CLEAR to police that you don’t give consent to search. PERIOD. Don’t do their job for them. Let me explain why.
Why shouldn’t you give the police permission to search without a warrant?
The first part to this answer is that it’s the police officer’s constitutional responsibility to get a warrant from a Judge. Giving them permission only side steps this requirement and lets them wear away your protections under Texas law.
The second part to this answer is that you can’t later challenge the search once you’ve given consent. Consent is the key to the castle for police. It gets them in the door, in your glove-box, in your trunk, and in your homes. It will make their case against you much, much stronger and make an attorney’s job VERY difficult later on.
How does it affect your case?
At the beginning it makes your case very difficult to argue from your lawyer’s perspective. Your chances of a favorable plea bargain will be greatly reduced. The evidence that the State has against you will almost certainly be admissible in Court if you go to trial. Of course, you always have the right to a trial by jury, should you choose that route. Consent to search doesn’t guarantee your case is sunk but it does limit your options.
The next Fourth Amendment Exception to the series will be Administrative searches.