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In general, how much can a person do to stop a warrantless search beyond verbally refusing consent? Is there anything further that can be done to prevent the search in the first place or make legal action after the fact more likely to prevail?

Most of the results I get to searches relate to what officers can legally do, but I'm more interested in the case where the search isn't legal (regardless of if the officer knows that).

I kinda suspect the answer (excluding thing like taking recordings) is "nothing at that time" but that any officers involved who ignore that refusal will get in trouble. Would it be legal (ignoring the question of advisability) to passively obstruct such an illegal search, say by locking a door or standing in a doorway such that the police would have to physically touch/move you to continue?

BCS
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    Not all searches require a warrant, so how do you know, at the time, the search is unlawful? Especially when "regardless .. if the officer knows that" –  Mar 27 '23 at 19:51
  • For the sake of the question, let's assume it does need one. That said, I kinda suspect the answer won't depend on that, in that at a guss what you can legally do and should do is the same in ether case? – BCS Mar 28 '23 at 01:06
  • Perhaps the safest yet quite efficient way would be to follow the officers wherever they go and keep repeating loudly like a parrot: "I do not consent to this search. You are doing it against my will, officer! Anything you find will be inadmissible in court". Unless they put earplugs, it would be quite hard for them to concentrate and search efficiently. – Greendrake Mar 28 '23 at 02:47
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    @Greendrake: I (not a lawyer) don't know of any cases where intentionally annoying the police has made anything better. And it won't prevent the search (which is likely impossible) so; would that improve the chances of prevailing in court after the fact? At a guess, not any more than saying that whenever (and only when) responding to the officer saying something to you. – BCS Mar 28 '23 at 03:10
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    Which jurisdiction? In many places you either do nothing, or you get shot on the spot and die. – user253751 Mar 28 '23 at 07:49
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    @user253751 Especially if your skin is the "wrong" color. – Barmar Mar 28 '23 at 14:25
  • depends on the jurisdiction. warrants not a thing everywhere. – njzk2 Mar 28 '23 at 21:25
  • Assuming this is in the US: Do not attempt to resist but also do not consent. If the police ask you to unlock something, I would probably hand them the keys before doing it myself. I would even say it's worth making them fish the keys out of your pocket. Their actions, not yours. – JimmyJames Mar 28 '23 at 21:53
  • @Barmar good point, added a tag to clarify what legal system I'm mostly interested in. (However I'd also be curious about how things work elsewhere.) – BCS Mar 28 '23 at 22:49
  • Can you turn '… searches relate to what officers can legally do' into its own opposite?

    Here in Britain - as in most jurisdictions based on British history - the difference between you and I as individuals, and the police or any other corporate body is simple:

    An individual may do anything not specifically prohibited by law.

    A corporate body - including a police force - may not do anything not specifically permitted by law.

     – Robbie Goodwin Apr 05 '23 at 20:22

1 Answers1

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  1. Don't consent.

  2. Say so (ideally in a well documented way, like on video).

  3. Challenge the fruits of any unlawful search after the fact in a suppression hearing, or in a civil rights lawsuit.

There is a decent chance that a court will find that the warrantless search is lawful – even if it isn't – but there isn't much that you can do about it that would be wise or legal.

Also, recognize that in many circumstances, warrantless searches are legal.

V2Blast
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ohwilleke
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  • Like the "decent chance that a court will find that the warrantless search is lawful even if it isn't" bit. Not doubting it at all, but just wondering if any stats are publicly available. Or is it from your experience? – Greendrake Mar 28 '23 at 01:00
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    Not my personal experience, but yes from what I have observed over the years in news reports, appellate case law, etc. – ohwilleke Mar 28 '23 at 01:02
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    @ohwilleke those sources are likely pro e to selection bias. The case that go bad tend to to be more widely know. – BCS Mar 28 '23 at 01:08
  • FWIW, item three is after the timeframe I'm wondering about. I'm more wondering if there's anything that can be done at the point of refusing concent that would beneficial when it comes time for item 3? E.g. If they have to walk around you, push you out of the way or break a lock to start a search, could that make it harder for someone to argue "I thought we had concent" than if you just verbally say no? Is there anything analogous to "I'm going to need that order in writing" that would be useful? – BCS Mar 28 '23 at 01:15
  • @BCS You aren't wrong but there are also known and well identified systemic biases in the process and there are exceptions to the warrant exception that aren't widely known among non-lawyers. Could I accurately state a percentage? Probably not, but the question is also conditioned on a fairly specific fact pattern that triggers a lot of those systemic biases. – ohwilleke Mar 28 '23 at 01:17
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    @BCS " I'm more wondering if there's anything that can be done at the point of refusing concent that would beneficial when it comes time for item 3? E.g. If they have to walk around you, push you out of the way or break a lock to start a search, could that make it harder for someone to argue "I thought we had concent" than if you just verbally say no? " Your logic is almost backward. If you do those things you are likely to be successfully charged with a crime and may create probable cause even if it wasn't present at first. – ohwilleke Mar 28 '23 at 01:21
  • @ohwilleke 1) I wasn't assuming that would (or would not) work or be advisable (as evidenced by the fact I'm asking this question), they are just examples of the type of action I'm asking questions about. 2) what crime would be committed? Particularly; what would the crime be from locking my door and then standing by while the police kick it in? -- Related question, can the police order someone to unlock a door? (E.g. it's locked before the intent to search is brought up.) Or can they only go with "unlock it or we will kick it in"? – BCS Mar 28 '23 at 01:35
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    @BCS IANAL, but I think the general idea is that you're normally required to obey orders of the police, even if you think they're unlawful. You can't interfere with the police, all you can do is challenge them afterward. – Barmar Mar 28 '23 at 14:29
  • @Barmar There is nothing wrong with respectfully challenging unlawful orders during an interaction with the police, as it shows you know that what they are doing is wrong, and it is hopefully being recorded at the time. There are many videos on the internet showing this. However, it does leave you open to charges of "disrespecting my authoritaaay" – Peter M Mar 28 '23 at 15:17
  • @PeterM You can try objecting, but if they insist you should let them. – Barmar Mar 28 '23 at 15:19
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    @BCS Interfering with an officer, failure to obey an order of a law enforcement officer, interference with a search, assaulting an officer, disorderly conduct . . . the exact labels aren't terribly consistent from one jurisdiction to another. Also, the officer could try to turn a "push" or need to push you into a justification for the use of force against you (with will almost certainly be more than is actually reasonable under the circumstance and may end up causing property damage that could have been avoided as well). – ohwilleke Mar 28 '23 at 16:19
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    @BCS The police should ask you to unlock it before trying something that could be damaging. Beyond that, any method that is "reasonable" under the circumstances to promptly get the door open is allowed. If a landlord had a maser key, for example, that would be preferred if possible and failure to do that if they were aware of the option could be enough to win damages for the cost of replacing the door in a suit alleging that while the search was legal that the means by which it was carried out was unreasonable. – ohwilleke Mar 28 '23 at 16:31
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    @ohwilleke: If one were to place the keys on the ground and say that you do not consent to the officer's use thereof, would such conduct be recognized as refusing consent to the search, even if the officer uses the keys to open the item? – supercat Mar 28 '23 at 19:40
  • @ohwilleke I don't know about as a matter of law, but if I was on a jury and someone said "I didn't consent, if I had, I'd have unlocked the door for them" and then go on to shown a picture of a busted door I'd need something rather persuasive to convince me the officer didn't know they hadn't consented. Also, IIRC, fixing a door cost about the same as 2-3 hours of lawyer time, so I might be happy to risk standing aside and watching my door get busted if it simplifies the legal situation down the line. – BCS Mar 28 '23 at 21:02
  • @ohwilleke Would phoning the police station to talk to someone—maybe a desk sergeant?—and telling them that there seems to be a problem possibly be a useful route? – Andrew Morton Mar 29 '23 at 17:26