By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Nothing good can happen from a voluntary search.
At best, nothing bad will happen. Who would ever make a business decision, take a gamble, or play a game where the best you can do is tie?
If you consent to a warrantless search the best thing which could happen is nothing. The worst thing which could happen is the officer find something illegal and take you to jail — and to make things worse — it leaves you with little legal defense later.
But I Don’t Have Anything to Hide
It’s not uncommon for police to find things you didn’t know were in your car or things you might have forgotten about. Drugs tend to play “musical chairs” when 3 or 4 people are in a car a police car is in the process of pulling you over.
I can’t tell you how many times I’ve heard people tell me they didn’t drugs were in the car. Many people also get stuck with weapons charges because they assumed a certain knife or other weapon was perfectly legal.
Warrantless Searches are Presumed Invalid
Most people don’t know that police can’t just dig through your car or house just because they want to. Police must play within the rules and can only search without a warrant or consent during a hand-full of situations. In fact, Texas law actually presumes that a warrant-less search is actually invalid. Where you agree to allow the officer to search, however, you’ve punted your rights away.
Police won’t tell you this, but you’ve got the right under the Fourth Amendment to the U.S. Constitution and Article 9, Section 1 of the Texas Constitution to be free from unreasonable search and seizure. You can refuse many searches. There are some situations where the police don’t need your consent — such as search warrants. In those situations, your remedy is to fight the search in court later.
Refusing to allow an officer to search during a traffic stop, for example, is easier said than done. First of all, the vast majority of the time the officer knows (1) what he or she is after; (2) the law with search and seizure; (3) the magic words they need to get you to say to waive your rights; and (4) most people they encounter on the road are subservient to authority and will have a hard time saying no if pressed.
Many people think that if they refuse the search, the officer may become agitated and retaliate somehow by writing more tickets, calling other police to the scene, or trying to search anyway. Some, all, or none of these things may happen — but what will absolutely happen is that you will waive your valuable rights which will be painfully obvious during later court proceedings. If we were to stack all the 4th Amendment cases, the pages would go all the way to the moon. Courts have dealt with virtually any scenario you can think of… and the police really do have tons of limitations you may not know about.
Here’s a video from the ACLU that talks about police encounters. It’s a bit odd and campy, but is very informational and captures the general tone of some police encounters. It’s obviously not a “how to get away with breaking the law” video, but is intended (as with this blog) to be generally informative of legal rights.
*Jeremy F. Rosenthal is an attorney licensed in the State of Texas. Nothing in this article is intended to be legal advice and is intended to be general information. For specific legal advice you should consult an attorney.