It’s not uncommon for New Jersey police to ask someone if they can search a person’s car, house, bag, etc. and lots of people wonder whether they have to let the police conduct a search. The short and simple answer is that you never have to give an officer permission to conduct a search. And you never should give them permission.
It almost seems obvious, but a surprisingly large number of people do not know this. I represent people in all sorts of criminal cases where possession of something is a crime or evidence of a crime – drugs, weapons, paraphernalia, burglars tools, etc. Trust me, if police had a warrant or some legitimate legal basis that would allow them to conduct a search without a warrant, they would not ask you for permission. They would simply conduct the search. The reason why they are asking for permission is because they know they need a warrant, they don’t have a warrant, and they are either unwilling or unable to go and get a warrant. Therefore, the only way that they can continue searching for evidence to be used against you is if you give permission. And why would you assist the police in their criminal investigation of you?
Clearly, that doesn’t make sense. But what I think ends up happening is that people simply don’t realize that they are allowed to refuse. Even if an officer tells them that they can refuse. Even if the office literally hands them a piece of paper that says that they can refuse. For some reason, they just feel like they need to agree to the search. But the answers is yes, you can and should refuse. No matter what the police tell you, you have the right to refuse. And if you exercise your right to refuse, it cannot be used against you later in court. Also – and this is important – if you consent to the search and the police don’t find anything, it doesn’t mean that the police won’t continue to investigate you and/or charge you anyway. You are not going to convince them that you are innocent by consenting to a search and hope that they don’t find anything. Remember, the police are investigating you because they already think that you committed a crime.
But what if you legitimately are innocent and you have nothing to hide? Surely, consenting to a search is fine and will help you, right? Right? Wrong! Even if you did nothing wrong, you should still exercise your right to refuse a search. And that is because you have no idea what the police may find and how they may view it as evidence in a case. For example, police may consider that baseball bat in your trunk a “weapon”, even if you use it to play in a weekly baseball game. Police may find a small bag of marijuana that a friend accidentally left at your house long ago and arrest you for it. Police may find text messages in your phone that were from an old argument with someone and consider it a threat to harm a person. I have seen all of these examples in actual cases and people who were certain that they were innocent could not believe it when they were arrested later.
So in sum, you have the absolute right to refuse a search and you always should refuse. Just say, “I choose not to consent to a search” and hand them your attorney’s business card, and leave it at that. But note, your right to refuse a search does not mean that you have the right to physically stop the police from searching. If you refuse and they search anyway, call a lawyer immediately. You do not have the right to push them out of the way and physically stop them.
Article by Daniel A. Levy, Esq.Posted by Daniel Levy Posted on 04 May