First let me qualify a few things; while I served in Law Enforcement for many years, I am not an attorney and have been retired for over 20 years. Even though I try to keep up on the law, I am not an expert and you may want to check the validity of the things that I am saying with your own attorney before you refuse to consent to a Search.
Remember there are only five ways in which the police can legally enter your home.
- A search warrant. If they come to your home with a search warrant, they are coming in, do not attempt to block their entry, all you will do is pick up charges of interfering and resisting. Even if they have a search warrant, you can politely state preferably in front of witnesses that you do not consent to a search. Offices will sometimes try to get you to consent to a search even if they have a warrant. This is backup in case your attorney gets the warrant thrown out.
- Plain View. If a police officer already has the right to be on your property and sees contraband or evidence of a crime that is clearly visible, that object may be lawfully seized and used as evidence. For example, if the officer comes to your front door and you answer and he sees contraband inside your home through the doorway, he can enter and seize it.
- Search Incident to Arrest. If you are being arrested in your house, police officers may make a limited search for weapons or other accomplices. The purpose of this search is for the protection of the officers and to prevent the destruction of evidence.
- Exigent Circumstances. This refers to emergency situations where the time lost getting a valid search warrant could compromise public safety or could lead to the destruction of evidence. This includes “hot pursuit” in which a suspect is about to escape. It would also include a situation in which there may be hazardous materials or explosives that have to be dealt with for public safety. A recent California Supreme Court decision ruled that police could enter a DUI suspect’s home without a warrant, based on the theory that important evidence, namely the suspect’s blood alcohol level, may be lost otherwise.
- Consent. This is where you invite or let the officers into your home. They will often ask to enter and talk to you. When they have entered your home, you have given up some of your rights. First, they can seize any evidence that they see in plain sight. Second, if they intent to arrest you, they are now inside your home and can conduct a search incident to arrest. Third if you have given a consent to search instead of just the right to enter, you have given them the right to search your home without a warrant and to use any evidence they gather against you.
If the police come to your home, go outside to speak with the cops. Close the door behind you. Do not give them consent to enter.
Be polite do not be belligerent, ask what they want. If it’s something like the neighbors complaining about your dog barking, assure the officers you will take care of the problem and do so.
If the police ask to enter your home, state, “I do not consent to any searches. If the officer insists or starts to ask you questions, do not resist, just ask for your attorney. Do not answer questions, do not lie to the officer, this can often give them evidence against you or lead to interfering charges. With Federal Agents, it can be a felony to lie to them.
Ask if you are free to leave, if the officer states yes. Walk away and go back inside.
Remember at no time answer any questions that may incriminate you and do not consent to a search of any type. But use your common sense, if the officer is asking about a traffic accident down the street and you are not involved, be helpful if you can.