Police & You: No You May NOT Search

When it comes to the Police & You, one of the most important of all rights guaranteed in the Constitution’s Bill of Rights is the Fourth Amendment’s prohibition on unreasonable searches and seizures. But what exactly is the scope of your rights under the Fourth Amendment, and how much authority does it leave police officers to perform their jobs?

The Fourth Amendment prohibits unreasonable searches and seizures by law enforcement. However, there are multiple exceptions to this right, some which are reasonable and some that are not. Take for example the consent search. Many times while reviewing police paperwork in a client’s case I am troubled to read that the “subject consented to a search” of his vehicle, bag, or other item of personal property.

This is particularly bothersome because you never have to consent to a police search – ever. Yet, because many of us were brought up to respect police authority, resisting a request to search can be particularly difficult. This does not mean that you may resist the police if they have decided to search. However, as a general rule, people should never agree to a search of their home, vehicle, bag, or other personal property. Doing so opens up potential floodgates of trouble.

For example, if you consent to a search of your bag, it could result in an officer damaging your personal items in the process of searching for contraband. Last June, the 5^th U.S. Circuit Court of Appeals ruled that the police did not violate a man’s constitutional rights when, after given consent, a police officer rummaged through the man’s bag and tore apart his boots to find drugs. The man’s attorney argued that because this was an unreasonable search, the drugs should be excluded from trial. He lost that argument.

Often, when it comes to the Police & You, the main question in a consent search is one of scope. Did this man merely give consent to search the bag, or did he give consent for the officer to destroy his property? One of the judges on the three-judge panel believed that the officer did not have consent to destroy the boots. In her dissent, Judge Jennifer Elrod wrote, “I cannot agree with the majority opinion that a “typical reasonable person’ would understand or intend consent to a search of a bag to include consent to forcibly dismantle footwear.”

One solution, proposed by those concerned about the overbearing authority of police officers, is to require police officers to obtain a warrant if they believe they will need to damage property during a consent search. On the other hand, some contend that a police officer’s job involves quick-thinking and that requiring them to take the time to obtain a warrant could put all parties involved in danger.

Whichever side take in the debate on the scope of the Fourth Amendment, it is critically important that you are aware of your rights. If you are the subject of a police investigation, or have been the subject of an unreasonable search and seizure, or are charged with a crime, call attorney John Freeman. It could be the most important call you make. Your freedom may depend on it.