Under the Fourth Amendment in the U.S. constitution and Article, 1, Paragraph 7 in the New Jersey constitution, you have the right to be secure in your person, house, paper, and effects, against unreasonable searches and seizure. The rule also provides that warrants will only issue if on probable cause supported by oath or affirmation.
Under the “automobile exception” to the search warrant requirement, you have less of expectation of privacy when driving a car, than for example, being in your home. So if you refuse permission to search your car, and you should, may result in the car being held until a search warrant is obtained. The Supreme Court has ruled that warrantless police conduct may comply with the Fourth Amendment, so long as it is reasonable under the circumstances.
If you are arrested, let’s say you failed to pay child support or a traffic offense, the officer can search your car incident to the arrest. That means the officer doesn’t need a warrant or your permission to search the car.
Can a person benefit from not consenting to a search?
If you are stopped by a police officer you absolutely should not consent to the search, ever. Don’t give up your constitutional rights. Whether or not the item is yours, you will be charged with possession because you are driving the car. This is doubly true if you aren’t driving your car or someone recently borrowed your car. You never know what was left in the car.
What happens if you don’t consent to the search?
The officer will either request a warrant from a judge or will have to prove there was a probable cause for the search. With a good attorney you have a constitutional argument that could result in suppression of the evidence against you. This will not work if you give your consent, because you will have given up that right. Also, there is a chance the officer will back down and let you off with a warning because obtaining a warrant is tedious. So to answer the question honestly, it would depend on the facts of your case but I can’t imagine a situation where your trial defense is improved by consenting to the search.
Free Resources
Charged with a crime or traffic offense? Learn your options before going to court.
- Arrested for Drunk Driving? Learn how to Beat the Odds – Looking for defense strategies? How about some common mistakes to avoid? Read this book;
- Why Pleading Guilty to Your New Jersey Traffic Ticket is NOT an Option – Learn the court process in more detail. I also discuss a number of violations, not just DUI’s;
- An Immigrant’s Guide to Municipal Court. Not a U.S. citizen? Are you concerned about immigration consequences? You should be. Learn what to expect in municipal court and immigratoi court.
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