Do I Have to Consent to a Search in Jacksonville?
The fourth amendment to the United States constitution is part of the Bill of Rights which gives citizens of the U.S. protection against unlawful searches and seizures. In Katz v. United States 389 U.S. 347 (1967) the Court said that citizens only have this protection when they have a "reasonable expectation of privacy" in the area to be searched. It is obvious that we have a reasonable expectation of privacy in our person but when we get into our surrounding area the protection can be harder to determine.
In order for a police officer to be able to search you they have to have probable cause that you have committed a crime and the search must be reasonable. Another circumstance in which the police can search you is if they have a warrant that was issued based on a sworn affidavit of probable cause that you have committed a crime. One thing that overrides your fourth amendment rights is giving the police consent to search your person, your vehicle, or your home. This is the biggest mistake most of my clients make when being confronted by the police.
The easiest rule to follow is do not give consent to the police to search anything. If they search you anyway there is nothing you can do about it. You shouldn't resist the search but simply make it clear that they do not have verbal consent to search anything in which you have an expectation of privacy. There is no law that makes it a crime to deny the police's request to search you.
The reasoning behind this, even if you are fairly certain that you have done nothing wrong, is that passengers in your vehicle, guests in your house, or someone that you borrowed a coat or bag from, may have left something illegal in those places. Once the police find the contraband it is very hard to get in front of a judge or jury and argue that it belonged to someone else but somehow ended up in your possession without your knowledge. If you get searched after you refuse to give consent, at least you have an argument that the search was illegal or unreasonable and you can keep the evidence out of court under the "fruit of the poisonous tree doctrine".
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Michael A. Atter
Former Prosecutor
Keith L. Maynard
Former Assistant Public Defender
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