Resisting a police request to search is a difficult thing to do

Criminal Defense: Search & Seizure in Virginia

Police will often attempt to gather physical evidence to assist in prosecuting crimes. Evidence may take the form of drugs, writings, computer information, weapons, and a host of other items. Usually the search for evidence will occur in one of two ways. The first, which most people are familiar with, is the search warrant. The second way searches are conducted is without a warrant. These types of searches can occur in a variety of situations. Regardless of whether a search is conducted with a warrant or without a warrant, it is important that you know what your rights are and how to conduct yourself with the police during a search. Whenever contacted by the police regarding any investigation, it is important to discuss the matter with a criminal defense lawyer first. Even when innocent, it is necessary to speak with a criminal defense attorney to ensure that you do not get tricked into a bad situation.

A search with a warrant allows the police to search for specific items in specific locations. A warrant is obtained from a judge or a magistrate and is based on a sworn statement from a law enforcement officer detailing the certain circumstances that exist that give him or her reason to believe that evidence that is relevant to a case being investigated is present at a certain location. The judge or magistrate then assesses the statement and any other supporting documents and determines if probable cause exists to issue the warrant. The level of proof or probable cause necessary to request a warrant is generally very low. Sometimes a search warrant is issued when probable cause does not exist. A good criminal defense attorney will perform his or her own investigation and may determine that a challenge must be made to prevent the found evidence from being used against his or her client.

The warrant must include the specific location and description of the place to be searched including an address and other identifying information. It must also include specific information about what items are being searched for and the items must also be described in the warrant. When executing a search warrant a copy of the warrant may or may not be presented to the person or people present at the time of the search, and search warrants may be issued for just about any type of property including homes, offices, cars, containers, and a variety of other items. Search warrants can even be issued for searching people such as in cases where the prosecution wishes to collect DNA evidence, hair samples, etc.

It is important to understand that you do not have the right to resist the execution of a search warrant. You must submit to the warrant even if the warrant is not properly issued or if the officers executing the warrant search for items not stated in the warrant. Your criminal defense lawyer should investigate the legitimacy of the actions of the police at a later time. Your criminal defense lawyer will know the fine points of the law and be able to evaluate the situation. Having said that, you also have no obligation to cooperate with the police. Never volunteer information to the police about the whereabouts of items or acknowledge that you knew the items were present or that you are the owner of the items. Officers will often ask for this type of information and then use it against you in a criminal prosecution. For example, in drug searches police will often ask where the drugs are and if you tell them they will use this information in court to show that you had knowledge of their presence. Often times this can be the only basis of a conviction. The police will tell you many times that if you cooperate and tell them where things are that they are looking for that it will “go easier on you.” Cooperating will not make things better, and in fact can make things much worse. One of the criminal defense attorneys at Boone Beale is a former police officer. We know their tactics. Do not be fooled into a false sense of security if the police question you during a search and have not read you Miranda Warnings. There are very specific rules about when they must caution you and the fact that the police question you does not mean they always have to give those warnings. If you are subject to a search you may very well not be able to contact your criminal defense attorney until later, but be sure to contact a criminal defense attorney as soon as possible to discuss the search. As a general rule be polite and do not interfere with the police but otherwise say nothing. Remember, if you resist the police in this setting you will lose and may even incur charges for interfering with them. It is their sandbox. Allow your criminal defense lawyer to assess the situation and if there are problems with the search let your criminal defense lawyer deal with them in the courts where the police do not have an advantage. A good criminal defense lawyer can show the jury the mistakes made by the police and use the mistakes to win your case.

The second type of search that an individual is likely to encounter is the warrantless search. Under the Fourth Amendment to the United States Constitution you are protected from unreasonable searches and seizures; however, in recent years the courts have carved out more and more exceptions to the warrant requirement and have allowed the police so many exceptions that the rule itself is now becoming the exception. Just to name a few there is the Open View Doctrine, Exigent Circumstance Doctrine, the Community Caretaker Doctrine, and many more. These carve-outs have given the police a great deal of latitude in conducting warrantless searches. A skilled criminal defense attorney will determine if the search was unreasonable, and if so, fight it in court.

If you should find yourself in this type of situation there are a number of things you need to remember. First, never consent to a warrantless search. You must remember that in almost all circumstances if you consent to a search the police have a legal right to conduct the search and use what they find against you. Your criminal defense lawyer will have no legal recourse to declare such a search illegal. Second, even if you believe the search is illegal never resist the officers conducting the search. As with a warrant, your criminal defense lawyer can assess the situation and take the proper steps in court to nullify the search if it is illegal. Also, as with a search with a warrant, do not volunteer information that could later be used against you such as showing the police where illegal items are or admitting that you knew of their presence.

Resisting a police request to search is a difficult thing to do. The police will use a number of tactics to encourage you to give consent. First, they will often tell you that you have no reason not to consent if you have nothing to hide. This may be true but it is better to let them think you have something to hide than to give consent and give them legal grounds to search and find evidence that will result in your conviction. Second, they may tell you that if you don’t cooperate they will have to hold you while they get a warrant and that will just be worse for you and the result will be the same. Most of the time they are bluffing, but even if they are not, let them get the warrant. There are many other circumstances where the police will pressure you to consent but you must be assertive and resist the pressure. Remember, as strange as it seems, by law you may not lie to the police but they may lie to you and try any number of things to gain your cooperation.

In summary, do not resist the police, they will win the fight. Do not offer or volunteer any information except to identify yourself. Do not consent to a search. Never show the police where items are located that they may be looking for and if such items are found, never admit they are yours or that you knew of their presence. If you follow these rules you may be arrested for whatever they find but you give yourself and your criminal defense lawyer a fighting chance to have the evidence against you thrown out when you get to court.