Thursday, February 6, 2014

Can I Refuse a Police Search on Me or My Car? NH Search and Seizure Laws

Should I consent to a search when the police ask?

One of the most frustrating issues criminal defense attorneys face is when a client consents to an otherwise unwarranted search of her vehicle, apartment, house or any area where the client has an expectation of privacy.  Often times the law enforcement officer is simply on a “fishing expedition” - you look young, nervous, timid, and guilty, therefore, the police officer, playing his hunch, asks for your “consent” to rummage about your vehicle, house or jacket pockets.  Your slight hesitation will be met with the following, “We can do this the easy way or hard way, and we can sit here all night while I call in a K-9 to search your vehicle or you can simply consent.”    Or, “if you have nothing to hide why don’t you just consent to a search?’  You have just fallen prey to manipulative police tactics.

<img title='Being Frisked' alt='Searched By Police' src='http://shepherdandosborne.blogspot.com/2014/02/can-i-refuse-police-search-on-me-or-my.html' >

What’s the law on consent searches?

Both the Federal and New Hampshire Constitutions protect you from unreasonable searches and seizures from the State and its agents.  Evidence obtained in violation of your 4th Amendment rights may be excluded from trial depending upon the facts and circumstances surrounding your purported consent.  A consent search is an exception to the requirement that the police obtain a warrant.  The State bears the burden of proving that your consent was given “freely, voluntarily and knowingly.” 

What if I didn’t really “consent” to the search?

Sometimes consent is subject to a legal challenge when the police expand the scope of a stop.  For example, the police pull you over for speeding and issue a ticket.  However, prior to letting you drive off, the officer asks for consent to search your car, usually looking for a chance to nab you on a drug transportation charge.  You consent and, eventually, the officer pulls a baggie of marijuana from under the passenger seat.  A good argument can be made that the police impermissibly expanded the scope of the traffic stop by asking for consent to search when you should have been on your way home.

As addressed above, sometimes the purported consent is not “freely” and “voluntarily” given as when there are threats of obtaining warrants at mid-night, bringing in a pack of angry K-9 dogs or towing your car back to the station. 

What to know

You do not need to consent to an officer’s request to search you, your automobile or your home.  You may politely refuse until presented with a search warrant.  If you are in your car, politely refuse the request and ask if you may simply be on your way.   If the officer insists that he is going to search a particular area, do not resist and/or act belligerent.  Rather, stand aside as this is a battle that will be fought in court. If arrested and contact a good New Hampshire criminal lawyer.


By Justin Shepherd


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