Warrantless Searches and Consent

by | Dec 20, 2018 | Blog Posts, DWI, Federal Criminal Defense, NC Criminal Defense, SC Criminal Defense

Consent in criminal cases – STOP FORFEITING YOUR CONSTITUTIONAL RIGHTS AND CONSENTING TO UNREASONABLE SEARCHES AND SEIZURES – You are not required to consent to a warrantless search.

 Though people often talk about having rights and knowing their rights, we have found that when the pressure is on people tend to panic, and waive some very important constitutional protections.  This mainly occurs because people tend to be intimidated by law enforcement officers and they take things that law enforcement officers say as mandatory directives, when if fact, the police officer is actually attempting to illicit your consent. They are trained on how to do this.

 In this blog, we will talk specifically about consent and interactions with police officers and other law enforcement personnel. This is intended for informational purposes only, and would be a poor substitute for the advice and counsel of a criminal defense attorney.

How prior consent works against you in your criminal case

Often, when people interact with the police, they consent to things without even knowing it.  They consent to searches, without realizing it. They consent to taking field sobriety tests when they did not have to. Part of the reason for this is the wording that officers tend to use. “Do you mind if I come in?”, “Do you mind stepping out to the vehicle for me?”, “Can you do me a favor and take a couple of field sobriety tests for me so I can make sure you are alright”.  People take these as directives, but they are in fact questions. Often, the police are counting on you to take these as orders and not suggestions. They are trained on how to sidestep the Fourth Amendment of the United States Constitution – the right of the people to be protected against unreasonable searches and seizures.

 You can say, “Yes, Officer, I do mind.” “Am I being compelled to do this?” or “I do not want to, am I being detained or arrested?”. You may need to hold strong during this phase because an officer will likely use intimidating tactics and the threat of criminal prosecution to get you to surrender your constitutional rights. But the fact is, an officer is looking to search you or to investigate you IN ORDER TO ARREST YOU AND CHARGE YOU WITH A CRIME. If an officer believes he has probable cause that you are impaired, YOU WILL BE ARRESTED AND CHARGED. If an officer finds drugs on you, YOU WILL BE ARRESTED AND/OR CHARGED. And so on, and so forth. These charges will occur regardless of how many constitutional rights you waive. As criminal defense attorneys, we can vouch for this.

When you consent, during a law enforcement investigation you may lose your ability to challenge what would otherwise have been an illegal search and seizure.

Consent regarding searches

 You have a Fourth Amendment right against unreasonable searches and seizures. What this means is, typically, a search of a person or their property by law enforcement requires warrant, or some sort of warrant exception. One of those exceptions is consent to a search.  If an officer asks you to come inside your home and you agree, any contraband that is found there can and will be used as evidence against you. The same holds true if you consent to a search of your car, your person, your bag or other belongings, etc.

Consent regarding DWI

In order to be arrested for DWI, law enforcement must have probable cause that you were driving while impaired.  When you voluntarily take field sobriety tests that you didn’t have to take, you give them the probable cause to arrest you if you don’t perform well enough.  Once they have probable cause to arrest, blood tests can be compelled that can prove the case against you. Also, please note that you do not have to submit to a breathalyzer test until AFTER you have been arrested for DWI. You do not have to submit to a breathalyzer test at the scene. This breathalyzer test is voluntary and is meant to provide police with probable cause to arrest you with DWI. Learn more here.

Consent and admissions are two of the biggest factors that can lead to your conviction and it is why we suggest that you hire an attorney before talking to law enforcement.

Final Notes

Obviously, we are not encouraging you to resist an officer or to be uncooperative. You can be perfectly polite, respectful, and cooperative while still asserting your constitutional rights. We are just encouraging you to become familiar with your constitutional rights and to understand how and when to assert these invaluable rights, should you wish to assert such rights. It is up to you to use your common sense and to do what is best for you.

Also, please note that in many situations, an officer does not need your consent in order to conduct a warrantless search. As noted, there are many exceptions to the warrant requirement of the Fourth Amendment.

Finally, please remember that your most important objective in any police encounter is to maintain your safety. Please use common sense and be safe.

If you have been charged with a crime, contact us.  At Gilles Law, we handle criminal charges in State and Federal courts in North Carolina and South Carolina.


DISCLAIMER – This forum is intended for general questions and comments about the particular law or topic. Comments are public and are not protected by confidentiality or attorney-client privilege; therefore, they can be used against you in court. Please refrain from revealing your identify or specifics about any actual criminal case. No attorney-client relationship is created in this forum.

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