Consensual Search and your Rights. What you should know.
What is Consenual Search in Arizona?
You can Limit the Scope of a Consensual Search to a Particular Area or Item.
For starters, just do not consent to a search. Politely say “no thank you” when asked. There is no need whatsoever to consent. We have a constitutional right to be free from unlawful searches and seizures. We also have a constitutional right to require law enforcement to obtain a warrant baring any of the other warrant exceptions. Even when you have nothing to hide, by consenting you are allowing law enforcement to hold you up/continue with their seizure and subject you to the embarrassment of a search for no reason. The Fourth Amendment protects you from that.
The Fourth Amendment provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” United States Constitution, Fourth Amendment. Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions. One of those exceptions is a consensual search.
Voluntarily given, consent is an exception to the warrant requirement. The scope of a consensual search is limited by the breadth of actual consent. When you provide consent for an automobile the issue becomes even more convoluted and fact intensive. The scope of a warrantless search of an automobile is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab. If you provide consent to the search of a car for drugs, guns or large sums of money, it does not include searching behind the door panels because without more, police can only search areas these items may reasonably be expected to be found.
So if you do provide consent, you can limit it to a specific container or area to be searched. However, the automobile exception could create significant issues for you even if you try to limit the scope of the search to a specific area. An officer can easily write something in their report, after the fact, and claim that they observed/smelled/heard something in the area you limited the scope of consent to—that provided them probable cause to search the remainder of the car.
Moral of the story, do not consent.
You Made the Mistake of Consenting to a Search but Midway Through you Changed Your Mind. You can Withdraw Consent.
Even after a person initially consents to a search, she nevertheless remains free to withdraw or narrow the scope of her consent at any time. The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect? A person can withdraw consent through unequivocal acts, such as repeatedly lowering his hands to block officers from searching his pockets, even without explicitly saying he no longer consented. That comes specifically from case law. My advice in this day and age is to not make any sudden movements toward your waste or pockets if you want to avoid being shot. So if you change your mind and want to narrow the scope of consent or withdraw entirely, just tell law enforcement that you change your mind and withdraw consent. Another piece of advice: use your phone to initiate a recording of the interactions whenever you get pulled over or stopped to avoid claims from law enforcement about things you did or did not say. Apple Iphone has an App that provides the ability to say “hey siri I am getting pulled over.” The app then will send your location to a friend and begin video recording.
Feel free to call us at any time with any questions or inquiries you may have. We offer a free 60 minute consultation to all of our clients. See contact details below.
The Litwak Law Group
Criminal Defense & Civil Litigation Attorney