Do I Have to Allow Police to Search My Car or House?

Throughout the U.S. - and specifically in the State of Florida - individuals are entitled to certain civil rights, which include protection against unreasonable searches and seizures as defined in the 4th Amendment to the Constitution. So no, you do NOT have to consent to a search of your person, your car, or your home. That said: Yes, police can conduct searches, and you might face consequences if you physically resist or attempt to get away.

We understand this can be confusing, especially if you’re grappling with these questions in the midst of an encounter. Main things to bear in mind:

• You do not have to consent to any search. 
• You should clearly - and calmly - state your lack of consent to the officer(s). 
• You should avoid fleeing or any other physical resistance to a search. 

If police do not have an adequate legal basis for conducting that search, it will be a question for your defense lawyer to suss out after the fact. But if you give consent to a search, you may forfeit any right to challenge that basis. And if you physically resist or run away, the search is likely to be conducted regardless and you’ll face additional charges. 

But it’s only legal if they have one of the following (depending on the circumstances):

• Your consent.
• Probable cause. 
• A warrant (which requires probable cause).
• Reasonable suspicion (for a stop-and-frisk). 

Police can stop a person in a motor vehicle with reasonable articulable suspicion that the motorist has committed a crime and/or traffic violation. But they can only conduct a search if they have probable cause - or your consent or a warrant. 

If the police wish to conduct a “stop-and-frisk” - which is basically a pat-down of your pockets - they can only do so with reasonable suspicion and for purposes of ensuring their own protection during the encounter. Namely, they’re allowed to check that you aren’t carrying a gun or other weapon that might be a threat to their personal safety. But any search beyond that requires, again, your consent, probable cause, or a warrant. 

The proof standard for non-consensual police searches is generally higher for one’s home versus their vehicle - especially if the vehicle in question is being operated on a public road or highway. With the automobile exception, courts generally conclude individuals have a lower expectation of privacy when driving their car than they do when in their own homes. Police usually need a warrant signed by a judge to conduct a non-consensual search of a person’s home, whereas non-consensual vehicle searches typically just require probable cause. 

In the 2003 case of U.S. v. Watts, the U.S. Court of Appeals for the 11th Circuit held that the automobile exception could even allow a warrantless search of a vehicle parked in a driveway - so long as the vehicle was readily mobile and officers had probable cause. Police can also search towed/impounded cars without your consent - even if the reason it was towed is for something as minor as a parking ticket. (That said, they can’t tow your car for the specific purpose of conducting a search.) 

Basic grounds for issuing a search warrant in Florida are spelled out in F.S. 933.02 and F.S. 933.07. 

The only other real exception to those 4th Amendment protections is an exigent circumstance. This is a situation in which police have reasonable belief that a non-consensual police entry/search is imperative to:

• Provide emergency aid.
• Prevent imminent destruction of criminal evidence. 

There’s also the “hot pursuit doctrine,” as defined in the 2009 U.S. Supreme Court ruling of Michigan v. Fisher. This creates an exigent circumstances for officers to enter a home if they’re engaged in “hot pursuit” of a suspect believed to be involved in criminal activity AND in the process of fleeing.

However, the Florida Supreme Court added a caveat to the hot pursuit doctrine with its 2017 ruling in Florida v. Markus, which is: Severity of the crime. If the crime for which officers are in hot pursuit of a suspect is a non-violent one, police will have a much weaker case for exigent circumstances. 

It’s worth noting that if you obstruct service or execution of a search warrant, as noted in F.S. 933.15, you can be charged with a first-degree misdemeanor, punishable by up to one year in jail. 

The bottom line is that while the law does give officers considerable discretion in initiating stops, there is less leeway when it comes to conducting searches. And while you should remain calm, you are within your rights to clearly state your refusal to consent to any searches. This can help preserve your right to later have your defense lawyer challenge and suppress evidence obtained in searches conducted without proper legal grounds.

Schedule a free initial consultation with The Ansara Law Firm by calling (954) 761-4011.