Can I tell police to wait and call a lawyer when served with a search warrant? Somewhat influenced by this question. This is hypothetical question. Suppose the police turn up at my door with a search warrant. I know nothing about warrants and couldn't tell apart a search warrant from a supermarket receipt. But I do have a lawyer who knows these things. Can I somehow make the police wait until I call my lawyer, and the lawyer arrives and examines the warrant - before the search proceeds? Any jurisdiction is fine for this question. Added: Thank you to all those that replied and commented. So, it sounds like (just as I thought), I can ask - and they can ignore.
You cannot legally force police to wait to carry out the search. They can search even if you are not present. In fact, they are required to execute the warrant within a certain time frame, which precludes delaying the execution of the warrant. You can inspect the warrant to see if it is &quot;proper&quot; (has the judges name, correct address, is a search warrant and not a warrant of removal/deportation...). Calling a lawyer is always wise, but that does not stop the search.
Yes, your best bet for immediate relief is to call 911 and ask for a supervisor. Generally speaking the police are not legally obliged to explain themselves to you on the spot. They are obliged to explain themselves to the courts and their supervisors.
In general, you do not have civil recourse against the government for (lawful) legal process that you are the victim of. "Counterclaim" would only be applicable when A sues B, and B makes a counterclaim against A – the police don't sue you, they arrest you, and the prosecutor prosecutes you (or decides not to). If the police beat you up, you could sue them for violating your rights, under what is known as Section 1983. Given the scenario you describe, this comes closest to involving false arrest, meaning that there was no probable cause for arrest. Otherwise, the police have immunity for their actions. But if there is a legal arrest warrant, there is probable cause (existence of probable cause is the standard for issuing an arrest warrant), so no claim against the police will succeed. I am leaving out the anomalous concept of an unlawful arrest warrant, where a judge issued an arrest warrant but there is in fact no probable cause. Such a case would be covered by Section 1983, where either the judge or the swearing officer (or both) violated your rights.
Under Georgia v. Randolph, 547 U.S. 103 (2006) in such a case the police may not lawfully enter without a warrant, and if they do enter, any evidence found will not be admissible. The court in Georgia v. Randolph said: [N]othing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection. We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident. However, the police may talk to either or both occupants at the door, and this may provide sufficient reason to obtain a warrant. If police determine that someone in the residence is in danger, they can enter on that basis, and anything in plain view may be treated as evidence. Further consider Fernandez v. California, 571 U.S. ___ (2014) In that case one occupant of an apartment denied consent for police to enter. But the police had probable cause to arrest him, and did so. An hour later police returned and got consent from the other occupant, who may also have been a victim of domestic assault by the first occupant. The consent search was upheld, as the objector was no longer present (being then detained) when the police asked to search. So the holding about divided consent applies ONLY if the objector is physically present. If only one occupant is present, that occupant may consent to a search, even if the police know very well that the other lawful occupant would have objected. Interestingly, in Fernandez it appears that police had ample probable cause and could easily have secured a warrant, but chose to proceed on the basis of consent instead.
Yes and no. There are numerous cases where criminals, upon breaking in to somewhere, find evidence of a worse crime and notify authorities. This will provide reasonable suspicion enough for entering the scene. Generally, in testimony, Statements against Interest are more believable because a burgler wouldn't admit to breaking and entering if he had a way to explain why he was there in the first place. (Example: Alice breaks into a Warehouse and sees a mutilated body and blood everywhere. Alice immediately stops her theiving ways and calls 911 to let them know about the scene. Whether or not Alice stays, a dead body is enough probable cause to secure the crime scene without warrant. Its in Alice's interests to stay and help as there is trace of her at the scene and she would be pegged as a suspected murderer. If she's picked up and admits to calling the cops, it's good, but staying and helping out after the call will likely get her off on the charges related to the murder.). It could also work if they are persuing one crime and discover evidence of a second unrelated crime. (i.e. Alice robs the factory and gets away. The Factory Foreman calls the cops to investigate the crime scene, which at this point, does not need a warrant. While investigating, the Cops find security footage that Bob, the night guard, killed Chuck, a late night worker, removed his body, and cleaned the scene, all before Alice broke into the factory. The outcome of the case being made against Alice does not affect their need to prosecute Bob, as they obtained that evidence while looking for Alice in a valid investigation, not Bob, thus it is legal). Under these situations a crime that leads to a separate valid crime involving a different party is admissible. There are two possible reasons that the attorney might think this: Fruit of the Poisonous Tree: This is the obvious element... the kids committed a crime with the hopes that the cops would use the evidence found by them in their commission of a crime to get the real bad guys. The attorney parent thinks this is stupid because the kids broke in specifically to do this and thus any evidence is now tossed out of court. This isn't usually the case in how this scenario will play. Generally the cops are more than happy to look at evidence obtained by criminals that points to another crime. In fact, this is how a lot of gang enforcement units and drug enforcement units operate... pick up a small fish and cut a deal for evidence against a bigger fish (turning state's in the criminal lingo, as the witness is becoming State's Evidence to another crime). As long as it's given to the cops as part of legitament evidence seeking, the cops can follow the leads where ever they... er... lead... Chain of Custody: This is probably, if properly thinking, what the attorney parent is thinking that's a bit more probable. Lets say these kids found a dead body with a sword in it and take the sword to the police... this could get dicey as the kids have contaminated the evidence in possible ways that the killer's lawyer could get thrown out. One thing CSI doesn't always show (though there are a few episodes where it comes up, but not many) is that when something is taken in as evidence, it is carefully documented, sealed, and tagged with a check in/check out list. Every time the seal is broken, the person breaking the seal notes the time, date, and reason and when does, reseals it with a new seal, and signs the time and date of the seal again. This is so at trial, the attorneys know exactly who opened up the evidence, what they did, and what possible contaminants were introduced. You even have to sign into a crime scene before you go up to the yellow tape. A good defense lawyer would call into question any evidence from anything the kids handled to get the evidence tossed (i.e. Your honor, these Meddling Kids handled the sword without following the chain of evidence. They even let their dog handle it. They had already harrassed my client earlier today by insunuating that he was involved with a hoaxed paranormal activity to scare people away from the factory. Since they claim they found the sword, but did document it at the scene, we don't know anything about it prior to the police's chain of custody. I motion that the evidence be dismissed.) If this is successful, anything from the sword is now no longer admissible as if the sword had never been found (including blood of the victim on the blade and finger prints of the suspect on the hilt)... in effect the evidence was prossessed as best the police could but the veracity of the story of it's discovery is too questionable to be considered. The defense does not have to be right, he just has to show there could be another explanation for the sword and the evidence linking his client to the crime committed by it. In short, without specific details, the attorney parent could be right or could be wrong, or more humorously, right, but for the wrong reasons. Edit: U.S. only. See other answers for other jurisdictions.
...in this case the officer has "definite cause." Why is probable used? "Probable cause" is a standard for when a property search can be conducted or a warrant issued. According to the Wikipedia article you linked to, Ballentine's Law Dictionary defines probable cause as a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true We do not talk about "definite cause" because there is no such legal standard. Having "definite cause" as you suggest here simply means you have a very strong case to satisfy the legal standard of probable cause. Referring to the above definition, the officer whose drug-sniffing dog alerts at a traffic stop certainly has a "reasonable amount of suspicion." The officer may actually have an incredibly high amount of suspicion, but that's irrelevant to the probable cause standard. It is merely sufficient that the officer's level of suspicion is "reasonable" and backed by suitable evidentiary circumstances. It just seems like any way you try to interpret the word "probable" it doesn't make sense, you either have cause to search/arrest/etc. or you don't where is the probability? The probable cause standard is "probable" because it does not impose exacting requirements on law enforcement. (Note that the U.S. Constitution uses "probable" slightly differently from its modern meaning; see another answer.) It need not be blatantly obvious that a crime is being committed but likely that a crime is being committed. Of course, the exact standard of how likely is likely enough to satisfy the standard of probable cause (and what evidence constitutes a particular threshold of likelihood) is a test for the court to determine.
If you comply without protest, this will be taken as consent to a search, and make anything found admissible. One can verbally object. The ACLU suggests the form &quot;I do not consent to searches&quot; to any request to search your car, your house, your person or any other property of yours or under your control. There is no need to give any reason for your refusal. However, one is required to follow any &quot;lawful orders&quot; given by police officer during a traffic or pedestrian stop.[1] Failure to follow lawful orders may well be a separate crime. Even if the lawfulness is suspect, it is usually better to comply and challenge the order later, in court. One might make a second objection, such as &quot;I don't see that you have probable cause for a search, and I do not give consent. Are you ordering me to permit a search?&quot; If the officer clearly orders you to open the trunk, one might place the keys in reach of the officer, while not opening the trunk oneself. That might help establish that there was no consent to the search, and require probable cause to be established before anything found could be used in a trial. One might also repeat, as the officer opens the trunk &quot;I am not consenting to any search.&quot; If it is possible for any person present to record video without obstructing the officer(s) that might hrlp to establish the absence of consent and other relevant facts, later. People in general have a right to make such recordings, but not to obstruct or interfere with police activity. Duty to Obey The Washington Post in an opinion article dated July 23, 2015 &quot;Sandra Bland and the ‘lawful order’ problem&quot; wrote: The Bland video brings up an overlooked problem with the law of police-citizen encounters. The police can back up their orders with force because it’s often a crime to disobey a lawful order from a police officer. But from a citizen’s perspective, it’s often impossible to know what is a lawful order. As a result, it’s often impossible for citizens to know what they can and can’t do during a police encounter. The first problem is knowing what counts as an “order.” If an officer approaches you and asks you to do something, that’s normally just a request and not an order. But if there’s a law on the books saying that you have to comply with the officer’s request, then the request is treated as an order. You can’t know what is an “order” unless you study the law first, which you’re unlikely to have done before the officer approached you. In the case of Oregon v Rose Mary ILLIG-RENN, 42 P.3d 62 (2006) The Supreme Court of Oregon held that ORS 162.247(1)(b), a statute that makes it a crime to &quot;refuse[] to obey a lawful order by [a] peace officer.&quot; is constructional against challenges under the Oregon and US Federal constitutions. Sources [1]: Virginia Code section 18.2-464. Failure to obey order of conservator of the peace Virginia Code Section § 18.2-463. Refusal to aid officer in execution of his office. Florida Statutes 316.072(3) &quot;*OBEDIENCE TO POLICE AND FIRE DEPARTMENT OFFICIALS.—It is unlawful and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, for any person willfully to fail or refuse to comply with any lawful order or direction of any law enforcement officer, traffic crash investigation officer as described in s. 316.640, traffic infraction enforcement officer as described in s. 316.640, or member of the fire department at the scene of a fire, rescue operation, or other emergency. *&quot; (Oregon) ORS 162.247(1)(b) Interfering with a peace officer or parole and probation officer A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer or a parole and probation officer ... Refuses to obey a lawful order by the peace officer or parole and probation officer. California Vehicle Code - VEH § 2800 (a) It is unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, when that peace officer is in uniform and is performing duties pursuant to any of the provisions of this code, or to refuse to submit to a lawful inspection pursuant to this code. North Carolina § 20-114.1. Willful failure to obey law-enforcement or traffic-control officer (a) No person shall willfully fail or refuse to comply with any lawful order or direction of any law-enforcement officer or traffic-control officer invested by law with authority to direct, control or regulate traffic, which order or direction related to the control of traffic.
In general, people have less expectation of privacy in cars than in their homes. To challenge a search and/or seizure under the Fourth Amendment, a person must have standing - the right to sue (that is, you must have had a reasonable expectation of privacy in the place where the search happened; if you didn't, no standing - can't claim your privacy was violated if you had no privacy). The US Circuit Courts are split on the issue of unauthorized rental drivers and whether they have the same reasonable expectation of privacy as the authorized driver of a rental car would have. Some Circuits allow the unauthorized driver to challenge a car search if the authorized driver gave them permission. Some Circuits look only at the agreement and if the driver isn't authorized on that, they're out of luck. The 6th Circuit is more case-by-case, with a presumption that driver can't challenge the search that can be overcome based on the facts. (All this info from US v. Haywood, 324 F.3d 514) There's a current case before the Supreme Court (argued January 9, 2018), Byrd v. US, on this very issue. This SCOTUSblog page has a lot of information on the case. Edited to add: Texas is in the Fifth Circuit, which follows the rule that unauthorized drivers don't have standing to challenge a search/seizure even with the authorized driver's permission to drive the car; unauthorized drivers of rental cars don't have a reasonable expectation of privacy because they lack a possessory interest in the car and/or they're violating the rental agreement. Basically, even though it seems the cops' stop of the car would've violated the Fourth Amendment if he were the authorized driver, since this happened in Texas, he's not going to be able to challenge the stop. IMO, this is incredibly unjust especially when the cops admitted there was no probable cause, so hopefully the Supreme Court makes this rule obsolete and allows unauthorized drivers to exercise their Fourth Amendment rights. Some law review articles on the topic of unauthorized rental drivers: "Hertz and the Fourth Amendment" "Resolving a Three-Way Circuit Split"