Many people consent to a search because they do not know they do not have to. For example, in a knock and talk situation, the police may approach a residence where they believe drugs are sold or used. Police will knock on the door, ask questions, sniff and ask to search. Police are allowed to knock. But, there is no requirement that you answer the door. You do not have to open the door. You do not have to consent to search.
Generally, if the police are asking a question, they are seeking your consent for something. A question means the police are asking permission or requesting consent. This means that you can say "no." Or, say, "I do not want to talk with you." If the police suggest you are hiding something, just say "my lawyer told me to say no." Listen for a question. If you are unsure if it is a question or a demand, you should ask, "do I have to?" You could add, "I do not want to."
Just because a police officer has a gun, badge and uniform, does not mean they have any more power than a stranger on the street. Be polite, keep your hands where they can see them and say no thank you, just like you would to a beggar. If I walked up to you on the street and asked personal questions or wanted to search your bag, you would tell me to take a hike. The same rules apply to the police. But, you have to know your rights. If an officer asks tries to stop you while you are walking to ask questions, you can say no thanks and keep walking. Be polite and keep your hands visible. Slowly move away. If the officer has cause to stop you, s/he will make that clear at this point.
If the police come up to you without lights and sirens and without a command to stop, the courts will say this is a consensual encounter. This means that the police do not have to justify their actions with evidence supporting the commission of a crime. If you do not try to leave or ask to leave, this remains a consensual encounter. Think of it as if a stranger came up to you and slowly start to move away. Tell the officer, "no thanks, I want to be on my way." Be polite and clearly state that you want to leave. If they question your actions, tell them that your lawyer said to do this. Make sure you are not committing a crime by leaving (for example, getting in your car and driving when you are impaired). Just walk away.
Why assert your rights? If you assert your rights, then an experienced criminal defense lawyer can get evidence suppressed. If you consent, then the evidence comes in against you.
Miranda Issues - "I want a lawyer"
I am often asked if a case can be dismissed if the police did not read the Miranda rights. The police only have to advise you of these rights in certain situations, basically, if they are asking you questions and you are in custody. The questions are not normal booking questions nor the basic questions at a traffic stop. But, if they are asking questions that would lead to incriminating information, then the rights must be read first. Custody has lots of definitions, but the basic one is that an average person would not feel free to leave and would feel like they were under arrest. A more concrete definition is when you are in hand cuffs. If they are asking questions, just say, "I want a lawyer" and nothing else.
Sometimes, police will ask you questions in custody without the warnings. Once they have the incriminating information, they advise you of your rights and ask the questions again. Many people willingly waive their rights because the police already have the information. This is generally illegal, but proving it can be difficult. It is best just to say, "I want a lawyer" to all questioning.
Often, police find drugs during traffic stops. Most traffic stops do not permit a police officer to search the car without further cause or consent. The police can only search a car without consent if they are impounding it or if they have probable cause of a crime where a search of the car could turn up evidence of that crime. So, if the police are investigating a speeding charge, they cannot search a car without additional evidence or consent. Most traffic offenses are completed by the time the officer turns on his sirens and lights. There is no other evidence to find. So, unless they have additional evidence that there is a crime occurring, they cannot search without consent.
Prior to conducting a consensual search of a person, their car or their things when the person is not under arrest, a police officer must 1) ask for voluntary consent to search, 2) tell the person they have the right to refuse the request to search. (CRS § 16-3-310)
Automobiles have very little constitutional protection.
This is because they can move easily and because much of the car, truck or van is visible through the windows. The courts reason that you have no expectation of privacy in a car. If you have something that you want to keep private, you need to put it in a very private place. The only place in a car that has any privacy, according to law, is the trunk. SUVs, wagons and hatchbacks do not have trunks. If a person wants to have some privacy in a car without a trunk, it is best to have a secure, locking box, that is far from the passenger compartment (so as not to be reached by a passenger) and locked. A locked luggage box outside the passenger compartment is better. A locked tool box in the bed of a truck works too.
If stopped for a traffic violation, you must provide your drivers license, car registration and proof of insurance. You do not have to do anything else, unless the police say you must. Have these documents ready before the officer gets to your door, s/he will want ask for them immediately. You are not required to answer any questions or make any statements. Just say, "I want a lawyer and I do not want to answer your questions."
If the police suspect DUI, you should know that you do not have to submit to the voluntary roadside maneuvers or SFSTs. You do not have to submit to the portable breath test (PBT). If you are arrested, you should choose blood or breath. Blood is more accurate, but will also test for drugs. Breath is not very reliable but does not test for drugs. If you refuse, then you will likely lose your license for a year after a hearing on the matter. For more information, go to the DUI section.
Even if you are guilty, there is a reason to have an experienced criminal defense lawyer. The right defense can result in a lessor crime that reduces the consequences and charges. The right defense can make your plea offer livable. You can only get the right defense from an experienced criminal defense lawyer. Call me immediately.