Understanding Consent to Search Laws

cops-searching-car | Consent to Search LawsAlthough the Fourth Amendment generally prohibits searching your car, home or person without a warrant, unfortunately law enforcement has found ways around the law when you have denied them the right to search. The prohibition against a search without a warrant is not applicable in a situation in which you voluntarily consented to a search, or when permission was obtained from a third party with “common authority” over the premises.

Even if you voluntarily consent to a search, however, your Boulder criminal defense attorney may be able to show that you were not fully aware of your right to refuse such a search. According to the Supreme Court, in order for a search to be considered voluntary, you must have been advised of your right to refuse consent. Further, your consent is not considered valid if you were impaired or had diminished capacity at the time of the consent.

While you do not have to consent to a search, it is important to note that police do have the right to “pat you down,” if they have good reason to suspect you are carrying a weapon, however you can refuse any further type of search. Consenting to a search can have adverse effects later on, so it is a good idea to never consent to a search of your car, person or home, despite the fact that many people believe denying the police consent to search makes you look guilty.

Can Others Consent to a Search for You?

If two or more people reside at the same location, in most cases, one tenant cannot consent to a search of areas “owned” by another tenant. For example, if the police suspect one person of a crime, that person’s roommate can give permission to the police to search the “common” areas, such as the kitchen and living room, but cannot give permission for a search of the other person’s bedroom.

In the same vein, landlords are not allowed to give permission to the police to search a tenant’s home, and one spouse cannot consent to the search of a house on behalf of the other spouse. Contrarily, an employer is allowed to give permission to the police to search the employee’s work area—but not the employee’s personal belongings.

Further Reading: The Long-Term Consequences of a Criminal Conviction

When the Police Can Search Even if You Don’t Consent

While on one hand, your consent is required, even if you refuse consent, there are specific circumstances under which the police can perform a search without a warrant—and in fact, most searches are done without benefit of a warrant. As an example, if the police believe your car contains evidence of a crime, they are allowed to search it without your consent. Further, even though you have a reasonable expectation of privacy in your home, if the police see or hear anything inside your house which leads them to believe a crime may have occurred or is occurring inside, they can search your home without a warrant.

The Plain View Doctrine

As an example, if you open the door, leaving the screen door closed, and clearly tell the police officers they may not search your home, if they can see drugs on your coffee table, or a person lying on the floor in a pool of blood, then your consent is not required. This is known as the Plain View Doctrine. Or, if you run from the police, then they have the right to come inside your home and attempt to apprehend you.

Search Incident to an Arrest

Law enforcement do not have to have a warrant to perform a search if they are arresting you. In other words, if you are being arrested for a crime, the police are legally allowed to protect themselves, even if that means searching your vehicle, car, or person. If you are arrested for drug possession, the police officers are allowed to search for additional drugs on you, in your vehicle or in your home. A warrantless search is also allowed if exigent circumstances exist, meaning the safety of the public is jeopardized, or evidence could be lost if a search is not conducted.

As you can see, while on one hand you are protected from a warrantless search under the law, on the other hand, there are many ways around those protections. If you, your vehicle or your home have been searched without benefit of a warrant, speaking to an experienced Boulder criminal defense attorney is definitely your best course of action.

Speak With a Boulder Criminal Defense Attorney Today

Steven Louth a criminal defense attorney in Boulder, COContact the Boulder criminal defense lawyers at Steven Louth Law Offices today for a free consultation and review of your case. Call us at (303) 422-2297 to start building a solid defense against these serious criminal charges.

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