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Taking Yes for an Answer: Consent and the Fourth Amendment

There is one gaping hole in all of Fourth Amendment law - although in fairness, it is the trap door under most of your Constitutional rights:

You can always give it up.

While there are lots of times that a search could be invalidated because of a lack of probable cause or for violation of a warrant requirement, no search will be invalidated if the person who is searched gives law enforcement consent to do so. It is up to the prosecution to prove that you consented later on, but that burden never seems to be that much of an impediment. In fact, although there probably aren't reliable numbers, it's thought that the vast majority of police searches without a warrant are justified on the basis of consent. A lot of evidence of criminal activity is found because people agree to be searched.

That comes as a surprise because it means people with incriminating evidence are agreeing to help a cop find it.

Why would people agree to be searched when 1) the search will find evidence of a crime and 2) the person consenting may likely have the right to say now and any subsequent search would be a Fourth Amendment violation? Probably because we aren't really "freely and voluntarily" giving the consent to be searched - more likely we feel in that moment like we can not refuse.


In fact, the courts of appeals have frequently held that you even have the right to revoke your consent to be searched after a search has already begun - so long as the revocation is clear. Basically, you have the right to say "I refuse to consent to search" or "I withdraw my consent to be searched." And in that moment, it is a good idea to be exactly that direct. This is really the long and the short of consent, and it is one of the few good rules of thumb that doesn't come with too many caveats - never consent to search. If an officer is asking, it's because they probably couldn't search you without your consent.

A skilled criminal defense lawyer can help you when there is a case to make, but if there is already proof of consent to search, a lot of damage might already be done.

By Carl Newman, Esq., licensed to practice in the State of Illinois

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