Situations where the police decide to search a person or approach someone with a search warrant can happen unexpectedly and develop quickly. People must understand their rights in advance of a police search helps ensure the best possible outcome. Your rights during a search come from the Fourth and Fifth Amendments.

What rights does the Fourth Amendment give you during a search?

The Fourth Amendment protects people from unreasonable searches. It states, in full, as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Because the government can’t force you to agree to a search without violating your Fourth Amendment rights, they must have proper grounds to conduct a search. This is why criminal defense lawyers generally advise that people refuse to grant consent. This keeps open the possibility of arguing in court that police acted beyond the scope of their authority. If the argument is successful, the court can keep the evidence police obtained from their illegal search out of your court case.

What rights does the Fifth Amendment give you during a search?

The Fifth Amendment protects people from coerced confessions. It states, in full, as follows:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Thus, people have the right to remain silent during a police search and do not have to answer questions from police. The best practice is to tell the police nothing more than your name. But people need not provide explanations, excuses or stories while police conduct their search.  

What is a pat-down or Terry search?

It’s important to note that, regardless of consent, police can lawfully conduct a frisk or pat-down search (also known as a Terry search) for safety reasons if they suspect weapons or danger. A pat-down search allows police to pat down the outer layer of a person’s clothing to find weapons. A safety pat-down is legal as long as it is limited to what is necessary to discover weapons and based on a reasonable suspicion that someone is armed.

The sole purpose of a frisk or pat-down is to find and remove weapons that pose a danger. It is not the purpose of a frisk or pat-down to find or take evidence of a crime, such as drugs or other contraband. However, police can legally seize the contraband they discover during a lawful pat-down search as long as their search doesn’t go too far.

The Takeaway:

The Fourth and Fifth Amendments protect your rights during a search. To comply with the Fourth Amendment, police must have an adequate legal reason to conduct a search. To comply with the Fifth Amendment, police cannot force you to tell them information beyond your name. If police are searching you or your property, you can ask for a lawyer and remain silent.