Frequently Asked Questions
Law Enforcement - Constitutional Rights - Searches and Seizures - Warrants - Consent
- Who should know their rights?
- When are police legally allowed to search me?
- What is "probable cause"?
- Why do police want to search me?
- Isn’t refusing to let the police search me an admission of guilt?
- If I’m not doing anything illegal, why shouldn’t I let the police search me?
- What if the police call in drug-sniffing dogs?
- What if the officer says he'll go easy on me if I cooperate?
- Aren’t police required to read me my rights?
- Is neonjoint.com anti-police?
- Aren’t you teaching people how to get away with breaking the law?
- How do my rights apply during security checks?
- What should I do if I am the victim of police misconduct?
1. Who should know their rights?
All people should be trained to assert their constitutional rights in order to avoid the hassle and humiliation of police misconduct and illegal searches.
According to the Bureau of Justice Statistics report on citizen-police contacts, about 21 percent of the population age 16 years or older -- or about 44 million people -- had contact with the police during 1999. More than half of these face-to-face interactions occurred because of traffic stops.
Of the 19.3 million traffic stops documented in the study, about 1.3 million motorists said they or their vehicle had been searched. In almost 90 percent of these searches, police found no evidence of a crime whatsoever! There is reason to believe that many, if not most, of these searches could have been avoided if the motorist had properly asserted his or her rights by refusing to consent to a warrantless search.
Still, while all Americans should be prepared to exercise their constitutional rights during police encounters, certain groups must be particularly aware of these rights due to systemic biases in law enforcement. Data from the Bureau of Justice Statistics show that minorities and young people are disproportionately likely to be searched by police.
The debate that has emerged in recent years over racial-profiling by law enforcement officers highlights the significance of constitutional provisions intended to prohibit discriminatory police practices. Flex Your Rights believes that educating citizens about their constitutional rights can play a significant role in reducing the harms associated with racial profiling.
2. When are police legally allowed to search me?
Police officers are legally allowed to search your home or your property if they obtain a search warrant. To obtain a warrant, police officers must write out an affidavit -- a written statement under oath -- to convince a judge that they have probable cause to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there.
As a general rule, searches conducted without a warrant are automatically unreasonable and hence violate the Fourth Amendment. But in fact most searches occur without warrants because police take advantage of these many legal exceptions to the Fourth Amendment:
- Consent Searches. If the police ask your permission to search your home, purse, briefcase or other property, and you freely consent, their warrantless search automatically becomes reasonable and therefore legal. Consequently, whatever an officer finds during a consent search can be used to convict the person.
- Plain View Rule. This is common sense: Always keep any private items that you don’t want others to see out of sight. Legally speaking, police do not need a search warrant in order to confiscate any illegal items that are in plain view.
- Searches Made in Connection with a Legal Arrest. Police do not need a warrant to make a search "incident to an arrest." After a legal arrest, police can legally protect themselves by searching the person and the immediate surroundings for weapons that might be used to harm the officer. Consequently, whatever an officer finds during such a search can be used to convict the person.
- Exigent Circumstances. A judge may uphold an officer’s warrantless search or seizure if "exigent circumstances" exist. Exigent circumstances were described by one court as "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence."
WARNING: If you ever face a real-life police encounter where the officer is urging you to consent to a search, you should not try to figure out whether or not he is legally allowed to search you. You must assume that he is not legally allowed to search you, and that his search will only be legal if you consent. If the officer is in fact legally allowed to search you, you have nothing to lose by refusing to consent to his request.
3. What is "probable cause"?
4. Why do police want to search me?
Simply put, the number of arrests an officer makes is a major factor used to determine his job performance. And police officers know that the easiest way to make arrests is to find people in possession of illegal drugs.
To make one drug arrest, an officer generally has to search ten people. This means that nine innocent people will likely endure the inconvenience and humiliation of a police search so that one law-breaker can be arrested. In some officers’ minds, the nine searches that turned up nothing are easily justified—especially if those people willingly consented to his warrantless search requests.
5. Isn’t refusing to let the police search me an admission of guilt?
No. If a police officer asks your permission to search, you are under no obligation to consent. The only reason he’s asking you is because he doesn’t have enough evidence to search without your consent. If you consent to a search request you give up one of the most important constitutional rights you have -- your Fourth Amendment protection against unreasonable consent.
A majority of avoidable, improper police searches occur because citizens naively waive their Fourth Amendment rights by consenting to warrantless searches. As a general rule, if a person consents to a warrantless search, the search automatically becomes legal. Consequently, whatever an officer finds during such a search can be used to convict the person.
Don’t expect a police officer to tell you about your right not to consent. Police officers are not required by law to inform you of your rights before asking you to consent to a search. In addition, police are prepared to use their authority to get people to consent to searches, and most people are predisposed to comply with any request an officer makes. For example, the average motorist stopped by an officer who asks them, "Would you mind if I search your vehicle, please?" will probably consent to the officer’s search without realizing that they have every right to deny the officer’s request.
If for any reason you don’t want the officer digging through your belongings, you should refuse to consent by saying something like, "Yes, I do mind. I have private, personal items in my [car, backpack, etc.] and do not want you looking through them." If the officer still proceeds to search you and find illegal contraband, your attorney can argue that the contraband was discovered through an illegal search and hence should be thrown out of court.
You should never hesitate to assert your constitutional rights. Just say "no!"
6. If I’m not doing anything illegal, why shouldn’t I let the police search me?
The sad fact is that most people believe that they are under some kind of obligation to acquiesce when an officer contacts them and asks permission to search them or their belongings.
The truth is the exact opposite -- you have a right to associate with, and speak to, whomever you please. In this respect, there is nothing special about a police officer. Assuming you would not let a complete stranger look through your purse or search your pockets, why would you allow a police officer to do so -- especially if you’re doing nothing illegal? Just say "NO" to police searches!
7. What if the police call in drug-sniffing dogs?
Your rights do not disappear if the officer threatens to call in the dogs, so don’t let this all-too-common tactic intimidate you into consenting to a search.
Before the dogs arrive, you have the right to dismiss yourself by asking if you are free to go. But if the officer detains you until the dogs come, remain silent and refuse to consent to any searches.
If a K-9 unit arrives, you should never consent to a dog sniff even if the officer claims you have to (which would be a lie). Remember: Unlocking your car at the officer's request or handing the officer your keys is the same as consenting to a search.
8. What if the officer says he'll go easy on me if I cooperate?
Unfortunately, many people get fooled by some version of this commonly used police officer's line: Everything will be easier if you cooperate. That might be true sometimes, but when it comes to consenting to searches and answering incriminating questions, it couldn't be further from the truth.
9. Aren’t police required to read me my rights?
No. The courts have made clear that police officers do not have to tell people that they can refuse to consent to a warrantless search. In other words, a police officer does not need to read you your rights before asking you to consent to a search. Also, despite the widespread myth to the contrary, an officer does not need to get your consent in writing. Oral consent is completely valid.
Many people believe that an officer must automatically read a person his or her Miranda rights as part of performing an arrest, either immediately before or immediately after an arrest is made. This is also myth.
The truth is that the only time an officer must read a person his or her Miranda rights is when: (1) the person has been taken into custody, and (2) the officer is about to question the person about a crime.
Police officers are often pretty tricky about trying to get someone’s consent to a search. They know that most people feel intimidated by police officers and are predisposed to comply with any request by a police officer. For example, the average motorist stopped by a police officer who asks them, "Would you mind opening the trunk, please?" will probably consent to the officer’s search without realizing that they have every right to deny the officer’s request.
10. Is neonjoint.com anti-police?
No. we believe that most police officers are good, hardworking people who are doing a tough job. We need police to safeguard the life, liberty, and property of all people.
To do this best, police officers should be trained to serve as peace officers whose goal is to preserve people’s constitutional rights. In other words, the number of arrests an officer makes should not be a factor used to determine his job performance. Instead, performance should be measured by the officer’s ability to maintain a safe, peaceful neighborhood and earn the residents' trust.
11. Aren’t you teaching people how to get away with breaking the law?
No. We teach people that they have rights, and these rights are secured by the principal documents protecting our civil liberties—the Constitution and the Bill of Rights. Our nation’s founders, who were keenly aware of the dangers posed by unchecked government power, created these documents to protect individuals from overzealous law enforcement officials.
For example, an informed individual who invokes his constitutional protections whenever a police officer asks to conduct a warrantless search is doing exactly what the founders intended. The catch is that these rights only apply if they are effectively asserted. Otherwise, people may knowingly or unknowingly waive these rights.
12. How do my rights apply during security checks?
Be aware that private security personnel outnumber police officers in the United States by three to one. As a result, you may be more likely to be confronted by a security guard than by a police officer. You must also be aware of the following places where security personnel (governmental or otherwise) are permitted to search you without a warrant:
The Supreme Court has held that an officer does not need a warrant, probable cause, or even reasonable suspicion to search you, your car, or your belongings, at a border. Therefore, any time you cross a U.S. border, you in effect consent to a search.
Be aware that airport security personnel do not need a warrant, probable cause, or even reasonable suspicion to search you or your belongings before boarding any commercial airline. Again, any time you board a commercial airline, you in effect consent to a search.
Private Security Checks
Private security personnel have a right to search you as a condition of entry into private property, for example. It is up to the individual to decide if a search is worth the price of admission. As long as you are free to walk away, the security personnel do not pose a threat to your constitutional liberties.
Keep in mind that a security guard can turn illegal drugs over to a police officer. In such a case, the drugs are then admissible in evidence, because the search was conducted by a private security guard. And at the present time the Fourth Amendment does not apply to searches carried out by non-governmental employees like private security guards.
13. What should I do if I am the victim of police misconduct?
If you ever have a run-in with officers who you think are violating your constitutional rights, don’t resist them. As soon as you can, write everything down about the incident including witness’s names and contact information and the officers’ names and badge numbers. File a police misconduct report immediately afterwards and consult your local ACLU chapter for advice.