Can I say no if a police officer asks for consent?
In the 1980’s, First Lady Nancy Reagan launched an anti-drug campaign with the words “Just Say No.” Those words take on a new meaning in the area of criminal law. The United States Constitution as well as the Utah State Constitution guarantee you the right to “just say no” in a number of legal contexts.
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If a police officer asks permission to search my car without a warrant, can I just say no?
The Fourth Amendment to the United States Constitution guarantees the right to be free from “unreasonable searches and seizures.” This constitutional protection has been interpreted by the courts to mean that when an officer stops you for speeding, an improper lane change, or some other minor traffic violation, he does not automatically have the right to search your vehicle. If the police officer does not have a warrant and asks you for permission to search your vehicle, you can just say no.
If an officer knocks on my door and asks if he can come into your home to and take a look around without a warrant, can I just say no?
Your home receives some of the strongest protections under the Fourth Amendment. Even if the officer keeps his feet, but just leans in and sticks his head in to look around, courts have held such conduct to be an unreasonable search in violation of the Fourth Amendment in some circumstances.
The best attorneys understand your case involves more than just what happens in court.
The Fourth Amendment protection against unreasonable search and seizure applies to more than just your home. If you are staying in a hotel, or if you are an overnight guest in someone else’s home, the Fourth Amendment gives you many of the same protections you would have if you were in your own house. If the officer does not have a warrant and asks for permission to search the place where you are living or staying, you can just say no.
If I am arrested and the officer asks if I would like to answer some questions, can I just say no?
The Fifth Amendment to the United States Constitution guarantees that no person shall be compelled to give evidence against himself. This is sometimes referred to as the “privilege against self-incrimination.” This is the source of what is sometimes referred to as the “Miranda” rights, or the right to remain silent.
Remaining silent doesn’t just protect the guilty – it can also protect the innocent. If you are arrested, you have the right to consult with an attorney before being questioned by police, and the right to have your attorney present if you do choose to answer questions.
A successful defense strategy starts with an understanding of your goals and needs.
If you choose to answer any questions, you are required to answer truthfully. But you don’t have to talk – you can “Just Say No.”
What if a police officer says that he “needs to search” my car, home, etc., can I still just say no?
There is a big difference between what a “need” and a “want.” Similarly, there is a big difference between what a police officer “needs” and what you may be legally “required” to do.
Police often use language such as “we just need to check to make sure your safe to drive before we let you go” or “we just need to check your car to make sure you don’t have anything illegal.”
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It may seem noble for an officer to want (“need”) to keep drunk drivers off the road, and having a driver perform field sobriety tests is one way to do that. But requiring or compelling a driver to stand on one leg, walk in a straight line, perform a stylized turn, count steps, and visually follow the officer’s finger back and forth to check for jiggly eyes goes beyond what a police officer can lawfully do without a warrant and without the consent of the driver.
A police officer who “needs” to search your car without a warrant and without your consent normally will not have legal authority to do so. You have places you “need” to be, things you “need” to do, and obligations you “need” to fulfill. Police have an important job to do in our society. An old cliche says that the job of a police officer is “to protect and serve.” The Constitution also serves to protect individual rights, and by doing so to help ensure that individuals can do what they need to do, go where they need to go, and meet the obligations they need to fulfill. The Constitution does not require that you give up your rights or change your plans just because police have a job to do. Even if a police officer feels a “need” to search your car or home, you do not have to consent. You can just say no.
If I am subpoenaed to testify against my spouse in a criminal court case, can I just say no?
Utah’s state constitution provides legal protection to spouses beyond what the United States Constitution provides. Utah’s constitution provides a testimonial privilege that allows a spouse to refuse to testify against his/her spouse, even when subpoenaed to come to court.
In criminal cases, it is not uncommon for a prosecutor to issue a subpoena requiring a defendant’s spouse to appear in court for an evidentiary hearing or a trial. A spouse must comply with the legal requirements of a subpoena that has been properly issued and served, but what such a subpoena can require of a defendant’s spouse is limited by the Utah’s constitution.
The subpoena can legitimately be used to compel to spouse to appear in court, it cannot be used to compel the spouse to give testimony against the defendant spouse. The court may order a spouse to take the witness stand. But a spouse called to testify against his/her own spouse may legitimately and lawfully refuse to answer any questions by claiming the spousal testimonial that is guaranteed by Utah’s state constitution.
If a judge asks me to enter a plea before I have a chance to talk to an attorney, can I just say no?
The Sixth Amendment to the United States Constitution guarantees the right to be represented by an attorney whenever you are charged with a crime. Utah’s procedural rules governing criminal cases also guarantee that a person cannot be required to enter any kind of plea (either guilty or not guilty) before they have had a reasonable opportunity to talk to an attorney about their case.
In a misdemeanor case, your first court hearing will typically be an arraignment where the court will ask you to enter a plea of guilty or not guilty. It is generally best to have the advice and assistance of an experienced criminal attorney prior to making that first court appearance and to have an attorney with you to help deal with any issues that may arise. But if you have not yet been able to retain counsel, you may politely ask the judge to let you delay entry of a plea until you have been able to hire an attorney.
Under such circumstances, just saying “no” could cause some concern to the court. But if you politely explain that you need to obtain the advice and assistance of counsel before you are comfortable proceeding, the judge will likely be quite understanding.
A Word of Caution
Important Disclaimer: If you use physical force in resisting a police officer’s attempts to search your car, home, or person, you will likely find yourself facing criminal charges for interfering with a police officer or a charge of assault against a police officer.
If you believe that the officer is violating your Fourth Amendment or other constitutional rights, verbally make it clear that you are not consenting to a search or seizure but do not physically resist. Make note of important events or actions taken by the police and contact an attorney as soon as is practical.
An experienced attorney can help you better understand your rights, whether they have been violated, and what remedies may be available to you. Again, it is rarely prudent or safe to use physical force against a police officer. Be respectful and polite, but clearly state that you do not consent to the search or seizure.
If the officer has questions or begins to interrogate you, you may invoke your Fifth Amendment right to remain silent and may request that you be given the opportunity to consult with your attorney before answering any questions.
Under Utah law, the only information you may be legally required to provide a police officer is your name and date of birth.
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