Let’s say you’re stopped by a cop who says that a TV was just reported stolen nearby, and would like to search your trunk. You know that you don’t have a TV in your trunk, but you do have a small vile of - I dunno - plutonium, so you say, “Sure”. He then opens the trunk and there is obviously no TV there but then he starts poking around the boxes , bags and clutter that is there. So it sounds like at that point you could say, “Officer, I withdraw my consent”, and he’d have to stop the search. Is that right?
Is it safe to say that refusal to a search is not probable cause for a search, as in “he obviously had something to hide”? 'Cause, maybe I have a low opinion of police, but it seems someone would try that…
Doesn’t work like that.
You give your consent to the search, you’ve consented to it.
Now, I suppose whether or not you’re being detained is another question… “You’ve had 3 hours to search it, I’ll be late for work if you keep looking…” might raise some interesting legal issues.
I suppose if you’re not being detained, you could consent to the search and then leave in another vehicle, but that would place the police in an amusing situation.
“I’ll consent to the search, but you have to wait 45 minutes first and call me a cab…” probably won’t fly either.
In any case, every vehicle or dwelling I’ve ever owned was previously owned, and I’m not about to consent to any searches of anything.
You never know if that shiny 3-year-old Civic you just bought was owned by a dope fiend…
Boy, you ain’t kidding. My first car was an '87 Chevy Celebrity. As it was made three years after I was born, one can imagine it’d had a few prior owners before I got to it. One day, while giving it a thorough clean-out after a road trip – keep in mind I’d had the car for about a year at this point – I reached down behind the back seat and felt a plastic baggie filled with what seemed to be fishtank gravel. I pulled it up…
…and found I’d discovered a VERY sizeable quantity of crack cocaine. Easily enough to land me with Possession With Intent to Distribute if a police officer had found it. I called the police and told them what happened, and they were happy to come take the stuff off my hands. Just out of curiosity, I asked the officer what might have happened if, instead of me finding it and reporting it, he had found it while searching my car at a traffic stop. He said, “Well, I’ll be honest with you…don’t think I’d buy that you had no idea this was there. At the very least we’d be taking a trip downtown, and from there it’d be up to the courts.” When I realized how easily I could’ve been sent to prison if I’d gotten so much as a speeding ticket in the last year, it made my heart skip.
Remember your rights, folks…and always clean out used cars. :eek:
Doesn’t it go further than that? The unopened mail on her table (as well as the mail diggleblop was holding in the OP) has been delivered, so even without consent, wouldn’t the U.S. Code that Zabali_Clawbane linked to no longer apply? I’m not suggesting it would be legal to open someone else’s delivered mail without consent, just that that particular law isn’t relevent once the mail has been delivered. IANAL
Thanks for the kind words! And I certainly agree about the quality of pravnik and Bricker posts.
But I am taking a break from GQ legal posts these days.
(They did give me fodder for one question in my shameless ripoff of the Bricker Challenge, currently pending in MPSIMS, though.)
Amazingly so, given the confidence with which the answer is given, eh?
You may withdraw your consent at any time, as long is it is with an “unequivocal act or statement of withdrawal.” See US v. Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993); US v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991); US v. Layton, 161 F.3d 1168, 1171 (8th Cir. 1998).
Just to make something even clearer (although Bricker is doing a good job of it), if there is probable cause there is no need for a search warrant. Like Bricker said this applies to cars not houses. If an officer smells marijuana, sees paraphrenalia or sees a pot plant growing in your back seat he has probable cause. The car can be searched without a warrant. There are limits that differ from state to state. For instance if there is probable cause in most states they can open the trunk. Here in New Jersey if you have probable cause to search the passenger compartment you would need a warrant to search the trunk. The state supreme court has also taken away the “mind if I look” consent searches. There has to be an articulable suspicion before consent can even be asked for. The officer doesn’t have to say that he has a suspicion, he can still just say “mind if I look” but he better be able to say the reason for it in court or it will be thrown out and the officer might be looking at civil rights charges.