For all you lawyers and legal people: Can I refuse consent for a (car) search?

leensman

Sadly, the Fourth Amendment is not particularly helpful or relevant indetermining when the police can search your car. While it is theoreticallythe starting point of all search/seizure doctrine, the only way to know what the cops can and can't do is to look at the case-law.

I can give you an overview of the Supreme Ct's decisions on carsearches. Note that many state courts have broken with the Supreme Courtin recent years, and may give citizens more protection under the State Constitution than under the Federal. In addition, in each area there are different administrative or other guidelines to control police behavior.
However, in general, I would expect the cops to make full use of the limits of their constitutional powers.

1) Search incident to arrest: _New York v. Belton_ , police have the authority to search the passenger compartment of a car and any containers in it if they are arresting someone recently in that car. _Belton_ said that the police couldn't search the trunk without further justification, but the cops could probably justify a trunk search under a different line of cases.

2) Inventory searches: Anytime the cops tow a car, they can search the car and the contents of any containers inside of it, for inventory purposes. The justification is:
1) to protect the suspect's property,
2) protect the police from claims over lost or stolen property,
3) protect the police from dangerous instrumentalities (bombs in the car, etc.)

The relevant cases are _South Dakota v. Opperman_ and Colorado v. Bertine_. Note that even though this search is supposed to be for inventory purposes, they can use any evidence or contraband they find when they get you in court.

3) Car Searches with probable cause: Under _Chambers v. Maroney_ and U.S. v. Carroll_, the police can search a car whenever they have probable cause. If the cops have probable cause, they can either do the search immediately or tow the car to a police yard, and then do the search. Either
way, no warrant is required. The justification for this is that cars are mobile, and thus the cops can't wait to get a warrant or the car might leave. (I don't like this reasoning either). However, later cases, such as_Texas v. White_ and _California v. Carney_ show that the car doesn't need
to be in motion or stopped on the highway. The Carroll-Chambers rule will apply to any car parked in a public place. There is a limited exception to this for a car parked on a private driveway. Under _Coolidge v. New Hampshire_, the cops would need a warrant if the car is on private property and there is plenty of time to obtain a warrant.

4) Probable cause to search a single container in a car: Under_California v. Acevedo_, the cops can search the entire car (including trunk) whether they have probable cause for the whole car or just for a specific container. As an illustration, if the cop smells marijuana outside your car, s/he has probable cause to believe there is contraband somewhere in
the car. On the other hand, if you walk through the airport and the drug dog sniffs your luggage, and finds contraband, and then you put the luggage in your trunk, the cop only has probable cause to believe there is contraband in your luggage. Under _Acevedo_ this is irrelevant, so the
thinking cop won't arrest you until you get into your car, and they can search both the luggage AND your car.

5) A "frisk" of your car: This is even more vague than the above rules. To make you stop your car, the cops need a "reasonable articulable suspicion" that you are either committing a crime or carrying contraband. Once you
have stopped the cops have per se authority to make you get out of the car (meaning they don't have to justify such a request in any way). Then, the cop can "frisk" your car for weapons, and any containers which might
contain a weapon, if they have "reasonable articulable suspicion" that they might find one. The reasoning is that the cop is in danger, and can search you to protect themselves. A "frisk" of a car is a cursory inspection of locations likely to contain a weapon, analogous to a frisk of a person. The Supreme Court has not defined "weapon" very narrowly, leaving open the possibility that the cops can frisk your car if they see your softball bat on the back seat (This issue has not come up yet). Of course, if the cops happen to find an illegal weapon or contraband, they become endowed with probable cause, and can then go on to perform a full search, or tow your car and search it later.

Generally, I would say that with all of these doctrines allowing
car searches, the police would have to do something blatantly evil before they would be unable to justify searching your car.

Bottom line if they can find probable cause which they determine at the stop then they can search.

Louella R

depends on the state and area in that state.

some places could state pc ..probable cause and have a search with a dog or without a dog..for drugs...
if you have nothing to hide why the reluctance..
Game wardens can search any vehicle if they think poaching is going on..they don't need no stinking warrant!...
so pick your battles carefully..

Monica

yes you can consent, but if the officer thinks you have something to hide, he/she will just call in the K-9 and have them sniff it out... Then you cant refuse

Mr Big

f.y.i., a 2-11 is armed robbery. I say if you got nothing to hide, let them search, because you know that you wont get in trouble for anything, and by refusing, you are raising there suspision

Amanda

Well...if the officers ask randomly you can decline consent and be on your merry way without "legal backfire," but if they have a "reason to ask" that sounds like they have probable cause to search the car, in which case they do not need your consent and trying to stop them will just look bad on your record later.

Catherine E: VT

If they have to ask, then you can refuse. There are things that automatically give them the right to search, but then they wouldn't ask. (They can search anywhere in plain sight. Reasonable cause gives them the right to search.)
Sometimes, if you refuse, they can get a dog out there, and if there's drugs or something, and the dog sniffs it out, then that gives them the right to search without your permission.

STEVEN F

You can always refuse consent. The question is do they NEED consent. If anything illegal is in plain sight, no consent is required. If you are arrested, an 'inventory search' is REQUIRED.

CGIV76

You can refuse the search, unless you're a wanted person. NOW, if the puppies are called, and they detect something, there goes your refusal.

Zuper Z

You can refuse. It is your right.

But why refuse if you have nothing to hide? The stop could be over in 2 minutes by saying yes and opening your trunk, or it could take 30 minutes while he calls for a K-9 and the K-9 WILL alert. Then he has probable cause to search the car without your permission.

Just cooperate with the men and women who are putting their life on the line for YOU.

Live legal and you should not have any complaints against the cops.

mikeysco

The first answer here is almost 100% correct and I'm really surprised to see an intelligent discussion on this subject. Normally, there's a lot of hysteria surrounding this kind of question.

You'd need to define "legal backfire" for anyone to really answer your question, but you always have the right to say no to a request to search. The only exception might be where you have accepted search terms as a condition of probation, parole, or some other kind of release. In that case, refusal to allow a search could get you arrested and the search would then be undertaken anyway.

Eventually, someone here is going to tell you that refusing to allow a search equals probable cause and that by refusing, you allow me to then search. If there is no other valid legal theory to allow me to search, the mere fact that you've refused my request does not allow me to conduct it anyway.

And yes, sometimes even when we have probable cause to search we still ask for consent. Couple of different reasons why, and they're not relevant to this discussion.

And just because you refuse does not necessarily allow me to detain you long enough to have a dog come to the scene. If I have nothing else but my "gut instinct", I don't have what's required to detain you any longer than needed to accomplish whatever I stopped you for.

If you have nothing to hide, you should still say no. It's nice when you allow me to search when you have nothing to hide and I appreciate it, but it's a waste of your time and mine. You have the right to say no; exercise it. Yes, it makes me suspicious. So what? I get paid to be that way anyway.

A "two-eleven" is the California Penal Code section for robbery. Adam-12 had way more of those than I ever have :)

fr_chuck

you may say no to a search, they can of course hold you for a drug dog or a warrant

Dirty D

Yes you can. Remember cops basically depend on your cooperation when they have no warrant. Even if the cop claims he does have a warrant by all means ask to see it. Many cops are not above waving a blank sheet of paper and calling it a warrant. Make them work for it but don't just hand over the keys to the castle. Whether it's your car, house or even a cardboard box if the cops simply ask the answer is always NO!

Some cops will ask why you don't want them to search it. Don't even go down that road. Just say you don't need a reason or say "it's my right." Then some cops will get loud and blustery and say "I KNOW WHAT YOUR RIGHTS ARE. DON'T LECTURE ME ABOUT RIGHTS." Just don't even respond to that.

The answer's still no." Don't get into philosophical discussions or hypotheticals with the cop. Just say no I don't consent. Don't even offer that maybe you had one joint or roach or even a seed in the car. That's all they need to dig even deeper.

And if you do get caught with your hands in the cookie jar, say nothing and tell them you want legal counsel. Don't try to talk your way out of it at the scene. Police officers are not stupid and are very well trained in what they do. It's the lawyers job to bail you out.

cornnholer

if they ask then they cant till yousay so i always say no

open4one

Not unless you get really lucky and the cop that pulled you over gets suddenly called for a "2 eleven in progress" (I have no idea what a 2 eleven is, but it always got immediate attention on Adam-12).

If they ask to search the car, odds are they have some reasonable suspicion that they at least think would get them a warrant if they wanted to take the time. If you say no, they'll probably hold the car (and probably you) until the judge decides whether to grant it or not.

Now, if you're really as smart as most people THINK they are, what you will do in this situation is this:

COP: Do you mind if I search your car?

YOU: I'd like to call my lawyer and ask him what he thinks before I answer that. (You'd better have a cell phone and a lawyer that will take your call immediately for this to work).

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