Must I Consent to a Police Search Request? And the Uncontrollable Urge to Say "Yes"

"No." Unlike some of my what can unfortunately seem like long winded and not as definitive as clients might like answers, consent to search spawns a clear cut single word answer. At least in Canada. 

Police questioning is totally different from police searches as to whether you have a choice or not in responding. While my default advice is always “say nothing” in response to police questions, unfortunately the real world is much more nuanced than that. Sometimes you must answer police questions, depending on what they are asking about (like insurance automobile questions). And sometimes it's in your best interests to answer police questions in an attempt to clear up suspicions and avoid being charged, even if you aren't obliged to answer (though often its not a good idea to do so). But never do you have to consent to a search.

Either the Police Have a Power to Search or They Don't

Either the police have powers and grounds to search, or they don't. It's only when they don't have grounds that they might ask you a question after a highway speeding stop like: "you mind if I take a look in your trunk?" And sometimes if you do say "no", you might get a response like "hey, if you don't have anything to hide, why would you say no?" Your best response is to remain firm and polite in your "no." At the very least, call a lawyer for advice. 

Sometimes, the police might even pull out a form for you to sign, which says that you've been told: (1) you don't have to consent, (2) that you can withdraw your consent at any time, and (3) anything found during the search can later be used against you as evidence in court. Now reading this, you might be thinking: "Why would anyone consent? I would certainly never consent! I'm not that stupid!"

Why Do So Many People Consent to Police Searches?

But thousands of people a year throughout Canada (and in other countries with similar constitutional protections against unreasonable search and seizure, like the United States) do just that, and consent to searches where the police have no grounds to search. Some even carefully read those forms, do understand them, but sign anyway. Why?

It seems to be something to do with people feeling that: (1) they have no choice, (2) they have nothing to hide, or (3) even though they do have something to hide, the police won't find it, and this is the best way to get rid of them. These "yes" men and women are wrong on every count. 

First, you do have a choice if the police ask if you mind if they do a search. Be it a search of your vehicle, a search of your house or office, a search of a bag you are carrying, or a search of your person, just say that you do mind. Be polite about it. You can even ask whether the police will go ahead without your consent, because they believe they have some kind of other authority?

The Police May Already Have Other Authority to Search Anyway

Sometimes the police will already have - or have sufficient grounds to obtain - a search warrant to search your vehicle, house or office. If they do, then your consent is irrelevant. Don't try to stop the police from executing a warrant (or otherwise conducting any kind of search), unless you want to be charged with obstructing justice. But they must get the warrant from a judge or justice before conducting a search, or have some other kind of lawful power to search without consent. 

Sometimes the police will already have grounds and powers to search incident to arrest without a warrant. Again, if they do then your consent is irrelevant. But they must have first arrested you, told you what you are being charged with (unless it is an emergency), and not exceed the limits of the search incident to arrest power (usually limited to your person and what you are carrying - though occasionally it might extend to a vehicle you are in; it will never extend to your whole house or office). 

Sometimes the police will be able to invoke exigent circumstances to search without a warrant or arrest if there is an emergency situation, where the search just can't wait. Again, your consent will be irrelevant. Though be aware that true exigent circumstances searches are very rare, since the police do have investigative detention powers to hold you, your vehicle, or even your home or office for a reasonable period of time pending the arrival of a search warrant. 

All Consent Searches are Vulnerable to Challenge

If my police powers to search explanation is starting to sound a bit complicated, that's because it is complicated. Lawyers and judges disagree frequently about when particular powers exist, and well intentioned police officers can certainly get it wrong if the judges are having trouble getting it right. Though throughout the training I still do for police officers on search and seizure, the best mantra for those officers to repeat is: "if in doubt, get a warrant." I especially teach my police students: never rely on consent, it's too uncertain of an authority, with too unpredictable later results. 

If you are the subject of a police search - by consent or otherwise - and something incriminating is found that leads to you being charged, my recommendation is to consult a lawyer about your prospects for challenging the search in court. I'm not saying you are guaranteed success on such a challenge, but in my experience most people never challenge police searches. Sometimes a search will be completely legal, and sometimes it won't be. But only by involving a lawyer will you be able to find out which category your search falls into.

No One Would Believe This In a Movie Script

While serving as a Federal Crown Prosecutor I once was involved in a case where a BMW speeding along the TransCanada Highway was stopped by police for a traffic violation. The stopping officer only had grounds for a traffic violation, but his suspicions were quite appropriately aroused.

The occupant of the fancy car seemed overly polite when stopped. And overly nervous, constantly shifting in his seat, eyes darting about, hands tightly gripping the steering wheel. Plus the vehicle had out-of-province plates, and the conscientious officer remembered from his training that fast food wrappers strewn about a car might be a sign that the occupants were driving non-stop over a great distance for illicit purposes (yes, there is a course on that, I've seen the materials; it might motivate all of us to tidy our vehicles). 

So, after giving him a speeding ticket, the officer asked the driver if he minded if the officer took a quick look in the trunk of the car. This officer was very well trained, and made it clear to the driver that he didn't need to consent, that he was free to go, and that anything he found could be used against the driver in court. The officer even pulled out a consent form for the driver to sign. Now what the officer definitely didn't know in advance was that the driver had 10 kilos of coke and $100,000 in cash in the trunk. And what do you think that driver did? He signed, and popped the trunk!

Gordon S. Campbell practices criminal defence law throughout Ontario, with a focus on search and seizure cases which he has appeared on up to the level of the Supreme Court of Canada. He also trains law enforcement agencies throughout Canada on search warrant & wiretap drafting, and is author of The Investigator's Legal Handbook series of books.

5 Things to Never Do if Stopped by Police on a Highway

Most of my criminal defence practice covers about 300 kilometres of Canada’s busiest highway, running from the Quebec-Ontario border in the east to Belleville in the west. While my work often involves helping individuals who live in the communities like Cornwall, Brockville and Kingston that are arrayed along that Eastern Ontario stretch of the Highway 401 (is there anyone who actually calls it by its official Macdonald-Cartier Freeway name?), it’s especially common for me to assist those who who were just passing through - often on their way to or from Montreal or Toronto, and points further east and west. They might get stopped by police along that all so busy corridor for one minor reason or another, but then things escalate.

If you’re ever stopped, I can offer you my top 5 things to never do if stopped by police on the highway. 

1. Lie to the Police

Yes, I know this one seems obvious. But police stops are stressful experiences. We can all do stupid things. We might not be thinking clearly. Often, you’ll have done nothing wrong, but lying to police can constitute the criminal offence of obstructing justice. So don’t give a false name. Don’t give a false birthdate. Don’t lie about where you are going, or what you are doing. 

2. Volunteer Information

No one has a legal duty to help the police, beyond providing very limited information mandated by law. If the police ask you about your name, you likely need to give it to them. If you are driving, you need to provide a driver’s licence, registration, proof of insurance, and limited other driving-related information if asked. But the police generally can’t force you to talk, regardless of whether you are the target of an investigation, a witness to an event, or just someone they casually encounter. 

3. Refuse to Provide Driving-related Information if Driving

Because driving a motor vehicle is a privilege, and not a right, the police can force you to talk about your driving. Beyond providing documents, if you’re involved in an accident the police can demand your side of the story. For regulatory purposes, there’s no right to remain silent. This rules also applies to other regulated activities, like when a regulatory agency is investigating your fishing activities, your hunting activities, or your income tax return.

A regulatory investigation can’t gather information compelled from you predominantly for the purpose of incriminating and charging you. But that can be the end result. Federal and provincial legislation creates many “information demand” powers in the regulatory context, but not in the criminal context. So a lawful drug manufacturer can be forced to talk, but an illegal drug dealer can’t. 

4. Refuse to Provide a Breath Sample

Even if you’ve been drinking, you very well might not be over the legal limit of alcohol in blood concentration, or otherwise impaired. But if you refuse a police demand to provide a breath sample, what your blood-alcohol level really was becomes irrelevant. Refusing to provide a sample is as serious of an offence as impaired driving or over .08.

There is a mandatory minimum fine upon conviction for refusing to blow, meaning you’re guaranteed to acquire a criminal record. So don’t worry about whether the demand for a sample is legal or not - let your lawyer worry about that later - just cooperate. That advice applies to all police activity. A search could be illegal, an arrest could be illegal, these are all things your lawyer might be able to raise later at your trial, and the illegality might very well lead to your acquittal. But don’t try to figure them out the lawfulness at the time of the events. Just let the police do their thing. 

5. Agree to a Search of Your Vehicle or Person

I get that there can be lots of psychological pressure to agree to a polite request “to take a peek in your trunk, just for a minute” even if you have 10 kilos of neatly packaged powder cocaine sitting in that trunk (true story, it happened on the Trans Canada Highway, and the driver did indeed say something to the effect of “No, I don’t mind of all, go ahead”). Either the police have the power to search, or they don’t. Sometimes they can lawfully search incident to arrest for evidence related to the offence they have reasonable and probable grounds to arrest for. At other times they will need a search warrant to conduct such a search. You should never try to obstruct their searching; but you shouldn’t consent to it.