Withdrawing Consent to a Search in a Criminal Investigation by Law Enforcement
Any search to which an individual validly consents meets constitutional rules for searches and seizures, regardless of whether the police have a warrant. The scope of the consent will define the scope of the search, such as a search of a home, a car, or a person’s body. If the police find something incriminating during the search, it can be admitted into evidence at a trial. Sometimes a person will consent to a search, only to change their mind and withdraw their consent once the search is in progress. Withdrawing consent may be possible, as long as certain requirements are met.
How to Withdraw Consent
Most importantly, you must withdraw consent unambiguously. Withdrawal of consent can be verbal or physical, but it must be obvious. You can explicitly state that you withdraw your consent, although you do not need to use these specific words. Saying that the search is causing an inconvenience or taking too long is not enough to show that you are withdrawing your consent. If you successfully withdraw consent, the officer must stop the search promptly. Anything that they find after consent has been withdrawn likely cannot be used against you, unless another exception to the warrant requirement applies.
Withdrawing consent verbally is preferable to withdrawing consent physically.
Physical gestures that might show withdrawal include taking an officer’s hands away from an object being searched or taking back an item from an officer who is holding it. However, physically withdrawing consent can pose some significant problems. It may be harder to convey withdrawal clearly, and different courts have different standards for how much physical action is necessary to withdraw consent. Also, if you engage in physical contact with the officer, this could result in a confrontation and even an arrest. You should withdraw consent verbally instead if possible.
Sometimes an individual can withdraw their consent only for a certain part of the search. In other words, you can limit the scope of the search to a certain area or certain objects. As with a general withdrawal of consent, any limitation on consent to a search must be clearly stated.
Inability to Withdraw Consent
There are certain contexts in which an individual no longer can withdraw their consent to a search. Most commonly, you cannot withdraw consent after a police officer has found incriminating evidence. This evidence can be used against you, and its discovery may support a warrant to conduct a broader search, for which your consent will not be needed.
The Point of No Return
An unclear withdrawal of consent can have serious consequences. For example, Officer Bill asks to search Megan’s purse, and she consents. However, Megan quickly decides that she would like to withdraw consent. Megan holds out her hand to indicate that she would like the purse back but otherwise quietly stands and watches the rest of the search. Officer Bill finds a note in Megan’s purse indicating that she has stolen property in her apartment. Megan has lost her ability to withdraw consent, and the note will probably be admissible evidence because Megan did not clearly withdraw consent before it was found.
In highly regulated settings, such as airports and prisons, you may not be able to withdraw your consent to a search. Airport security screenings usually cannot be halted midway through the process. If you are being searched during a prison visit, you probably cannot stop the process midway through, since prison authorities will have previously informed you that you will be subject to search.
Handling Requests from Police Officers
The police often do not tell suspects that they do not need to consent to a search or can withdraw their consent. While you should show respect to the police, you should not feel intimidated if you are asked to consent to a search, and you do not need to volunteer to be searched. An officer’s request for consent is often a sign that there is no legitimate basis for a search at this stage, since they would have a warrant otherwise.