There’s a lot of misinformation out there about when police need a search warrant and how you should interact with police if they ask to search you, your car, or your home with or without a warrant. Below, I’ll address some of these “myths” and provide some general information about what your rights are during a search by police.
It’s important for everyone to know your rights during a police search so that 1) you are not unnecessarily subjected to an invasive search of your person or property, and 2) you are not handing evidence to the police that they would not otherwise have been able to access or use in court.
What Are My Rights During a Police Search in SC?
The Fourth Amendment to the US Constitution and Article I, Section 10 of the SC Constitution are the only thing that prevents police from searching you, your car, or your home whenever they like.
What are our Fourth Amendment rights and how do they affect police searches?
What are My Fourth Amendment Rights?
Your rights during a police search in SC are found in the Fourth Amendment to the US Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The SC Constitution contains similar protections in Article I Section 10:
SECTION 10. Searches and seizures; invasions of privacy.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.
Note that the SC Constitution contains additional language, “…and unreasonable invasions of privacy…,” which SC courts have interpreted as giving SC citizens additional protections beyond the “minimum protections” of the Fourth Amendment.
What Are My Rights During a Police Search of My Vehicle?
Police do not need a warrant to search your vehicle if they have probable cause – it is what’s called the “motor vehicle exception” to the search warrant requirement.
If you roll up your window and demand to see a warrant before opening your car door as some YouTube videos recommend, you are not “standing on your rights.” You are unnecessarily antagonizing the police officer who, again, does not need a warrant if they have probable cause.
Police can also ask you to step out of the vehicle, even if they do not have probable cause. The courts have held that this is okay for the officer’s safety.
You have the right not to answer any questions. If a police officer is asking you questions about where you are coming from, where you are going, or what you are doing, you do not have to answer them. You can say, “I don’t want to answer any questions and I would like you to respect my privacy.”
If a police officer persists in questioning you or attempting “small talk” during the traffic stop, simply ask them, “Am I free to go?”
You do not have to consent to a search of your car, nor should you, even if you don’t have anything to hide.
What Are My Rights During a Police Search of My Home?
Police do need a search warrant if they are going to search your home unless one of the many exceptions to the Fourth Amendment’s warrant requirement applies.
You do not have to consent to a search of your home, nor should you.
You have the right to see the search warrant before allowing them into the house. If police ask to search your home, ask them to show you the search warrant.
If police have a search warrant, let them complete their search and do not get in their way. If police refuse to show you the search warrant, you still should not attempt to stop them from searching but you should document or record the search if possible. Do not interfere with the search and be careful not to say anything that could be interpreted as giving them consent to search.
As with a police search of your vehicle, you do not have to answer questions or engage in small talk with the officers. You can politely tell them you do not want to answer questions and remain silent.
What Are My Rights During a Police Search of My Person?
Police can do a “pat-down,” or “Terry frisk,” if they have a “reasonable suspicion” that a person is carrying a weapon. To do a more thorough or invasive search of your person, however, police need a warrant unless an exception to the warrant requirement applies.
You do not have to consent to a police search of your person, nor should you. You also do not have to answer questions – if police are attempting to question you on the street, you can politely tell them you do not want to answer questions and ask, “Am I free to go?”
Should I Consent to a Police Search?
You never have to consent to a search by police, whether you have something to hide or not. If you have nothing to hide, that’s great – you have a right to privacy and to be free from unreasonable search or seizure by the government.
Police do not have the right to search your property unless there is probable cause that a crime is occurring or that evidence of a crime will be found. If you do not want to live in a world where law enforcement can search citizens or seize their property without probable cause, do not consent to searches of your person or property. Ever.
What if Police Search without Probable Cause?
If you do have something to hide (or if the police find something you didn’t know was there), you cannot challenge its admission in court if you voluntarily consented to the police search.
When the police search you or your property without consent and it results in a criminal charge, you will have the opportunity to challenge the officer’s (or magistrate’s if there was a search warrant) determination of probable cause in court.
If the court finds that there was no probable cause for the search, any evidence that the police found as a result of the search should be excluded at your trial.
SC Criminal Defense Lawyers in Myrtle Beach
Your criminal defense attorney at Coastal Law will review the evidence against you, including any video, audio, police reports, and potential witness testimony, to determine whether you can challenge the probable cause for your search and for your arrest.
If you have been arrested and charged with a crime in the Myrtle Beach, SC area, call the Horry County criminal defense attorneys at Coastal Law now at (843) 488-5000 or send an email to set up a free consultation to discuss your case.