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Photo of Matt M. McClenahen
Photo of Matt M. McClenahen

Drug Posession: When to Grant or Deny Consent to a Search

On Behalf of | Apr 15, 2013 | Drugs

The plight of championship-winning Boiling Springs wrestling coach Rod Wright serves as a perfect example of why it is often not in your best interests to consent to a search by police. On January 14, 2013, police received an anonymous tip that Wright had drug paraphernalia in his home. The police went to Wright’s home and asked for permission to enter the home and look around. Wright was not present, but someone else consented to a search, and, lo and behold, the police found drug paraphernalia.

Whoever allowed the police to search Wright’s home made a tragic error, unless he or she is the same person behind the “anonymous tip.” An anonymous tip is never sufficient probable cause to get a search warrant. Thus, the only way the police were going to find any drugs or paraphernalia would be if a gullible, or perhaps malicious, occupant gave them permission to search the home.

There are, of course, situations where consenting to a search really does not hurt a suspect. For example, if the police come to your dorm room because it reeks of pot and when you open the door, they see a giant bong in plain view, surrounded by shake and crumbs, you might as well consent to the search. Otherwise, the police are going to just get a search warrant anyway, and in the mean time, they will secure your room for the next few hours.

The general rule to when to consent and not consent is as follows: when the police clearly have probable cause to get a search warrant, then you might as well consent and score some mitigation points for your cooperation. This cooperation could result in more lenient treatment down the road. If, on the other hand, the police clearly have no probable cause, then you should not consent to a search. For example, if the cop gives you a speeding ticket or a warning, says you are free to go, and then turns around and asks to search your car, you should always deny consent. Chances are the cop suspects you may have drugs merely because you have demographic identifiers common to drug users, which the cop has been trained to hone in on. Being young, having dreads, tattoos, body jewelry and progressive bumper stickers on your car do not create probable cause for a search warrant, but they will lead the cop to pressure you for consent to search your vehicle.

Many people wonder why anyone would consent to search when they know they have drugs in their car. The simple reason is that a skilled cop will make it seem like you really have no choice but to consent. That is why it is important for you to know your rights and to politely deny consent.

Knowing when the police have probable cause or don’t have probable cause may not always be clear to the average citizen. If you are not sure, then you should error on the side of caution and not consent to a search. Also, if you have a criminal defense attorney’s number in your cell phone, the police will sometimes, but not all the time, allow you to call him for advice as to whether or not to consent to a search. In my experience, the cops seem to always allow such a call to an attorney when they clearly have probable cause for a search warrant, and they know the attorney is going to tell the client to consent. Then again, maybe I have been doing this so long that I am just jaded and cynical.

Matt McClenahen is a criminal defense attorney in State College, PA, with extensive experience in drug cases.


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