When Do You Have To Allow An Officer To Search Your Home….Almost NEVER.

The following article was written by Larry M. Elkin, I came across it recently and found that it is a good reminder that unless an officer has a search warrant, you do not have to allow him to search your home or car. There are a couple exceptions to this rule, but it is always best to politely decline the request to search.

Why I Teach My Daughters to Deal with Police

Written by Larry M. Elkins, CPA, CFP from Scarsdale, NY

My wife and I taught our daughters how to tie their shoes, how to catch a ball, and, a little later, how to deal with the police.

Many people do not know how to handle an encounter with a police officer, and, as a result, end up inadvertently waiving their rights. When my daughters were in high school, there were several cases in nearby suburbs where police arrested teenagers and sometimes their parents because of underage drinking taking place within private homes. While I do not condone underage drinking, what truly puzzled me was why anyone would allow police officers into their home without a warrant.

In most situations, police must have either a warrant or an individual’s consent before they can enter a private residence. In situations where the expectation of privacy is lower, such as for a vehicle, police still must, at the very least, have probable cause or reasonable suspicion before conducting a search. However, all too often, people fail to realize when their consent is required and permit searches that they are not obliged to allow. This creates the possibility that police will discover something illegal or something that could be misconstrued as illegal.

I recently wrote about the case of Jerry Lemaine, the Haitian-born Long Island resident who is currently facing possible deportation after police discovered a single marijuana cigarette in his pocket. Lemaine came into contact with the police when he crashed into a parked car on his way home from a party. This situation provided no legal justification for the officer to explore the contents of the young man’s pockets.

According to the organization Flex Your Rights, which is dedicated to helping people stand up for their rights when dealing with the police, police may conduct a pat down of a person’s outer clothing only to check for weapons and only if they have reasonable suspicion to detain the person. They may reach into a person’s pockets only if they feel an object that is likely to be a weapon — not if they feel an object likely to be a joint. Lemaine should have refused to comply with the officer’s request that he reveal the contents of his pockets.

Many people mistakenly think that, if they have nothing to hide, they should consent to any search that a police officer wishes to conduct. But not having committed a crime is no guarantee that something in your possession will not be mistaken for something illegal. In January, two Bronx men were headed to a party when police asked to search their Ford minivan. Cesar Rodriguez, one of the two, told the New York Post, “I said ‘Go search.’ I even opened the door.”

What police found inside was a Hello Kitty sandwich bag of Coco Candy, which the newspaper describes as “a hard coconut-based treat.” What police thought they had found was crack cocaine. Rodriguez was held in jail for five days and the other man, Jose Pena, was held for three days. If Rodiguez and Pena had refused to allow police to look inside the van, the officers never would have had the opportunity to mistake the candy for cocaine.

One notable exception to the rule that you should always refuse to cooperate with unwarranted searches is the blood alcohol test. In most states, by driving a motor vehicle, you give implied consent to chemical testing. Penalties for refusing a breathalyzer can be steep, and, in some cases, refusing the test carries a greater sentence than taking the test and demonstrating an above-the-limit blood alcohol level.

But in nearly all other cases, the best course of action is to politely say no. This is the lesson that Flex Your Rights hopes to convey with its new short film, 10 Rules for Dealing With Police, and it is the lesson we taught our daughters.

One night when my wife and I were out of town, one of the girls had a few friends over. I don’t know if alcohol was present, but this group of friends is not a big drinking crowd. More likely they were cooking, baking and listening to music. A police officer knocked on the door, and my daughter stepped outside to meet him.

The officer said there had been a noise complaint — unlikely, since our house is not very close to any other houses and my daughter’s friends are not very loud. It is possible that a few people were talking and laughing in the backyard, but it is, in my opinion, more likely that the officer simply noticed teenagers coming and going and decided to investigate.

The officer asked my daughter if he could come inside. She replied, “I’m sorry, but my parents aren’t home and I’m not allowed to let you in the house.” The startled officer pulled out a notebook and asked, “Who are your parents?” My daughter gave him our names. He thereupon left, and we never heard anything further.

We came home to a peaceful, orderly house. There was no problem. There was no safety issue. I was proud that my daughter knew the correct, polite way to handle the situation, and glad I had played a role in preparing her.

I have nothing against police doing their job. But I am not going to permit random inspections of my house, my car or my person until the day comes when I can just drop by a police officer’s house and ask to look around. Our rights to privacy, and to only be searched when there is a reason to be searched, are important. Rights, however, are no good unless we exercise them.

So when someone in a uniform asks — or demands — to take an unwarranted look around your stuff, flex your rights. In doing so, you protect freedoms that are important for all of us.