Here is an excerpt from David Clark's book "101 Ways to Beat a Marijuana Charge in Georgia ." You can get your copy here.

Read our other blogs about this book:

"101 Ways to Beat a Marijuana Charge in Georgia"
Dave Clark's Interview
All About Drug Dogs

Atlanta DUI Strategy 1: Never consent to any search

Your constitutional rights can be waived, or given up. For example, when you plead guilty in court you are waiving your Sixth Amendment right to a jury trial.  When you agree to talk to the police while you’re under arrest you are waiving your Fifth Amendment right to remain silent.  When you enter an airport you are waiving your Fourth Amendment privacy rights; you are consenting to a search in exchange for the right to board a commercial plane.  Similarly, if you enter a concert or a public building like a courthouse you are also voluntarily subjecting yourself to search and seizure for the purpose of public safety.

In some situations, the law provides that you be informed of what your constitutional rights are before you waive them.  Judges take great care in court to remind people of all the rights they are giving up when they plead guilty to even a minor offense like speeding.  If the police wish to question you while you are under arrest they’re required to read the Miranda warning (you have the right to remain silent, anything you say can be used against you, you have the right to speak to an attorney, if you can’t afford one, one will be appointed to help you, etc.)

One situation where the police are not required to warn you of the consequences of waiving your rights is when you are asked to waive your Fourth Amendment rights and consent to a police search of your house, your car, your bag or your person.  Many people are unaware that they can say, “No” to an officer’s request to search.  Your Fourth Amendment rights are always with you and never have to be waived.  If you do not consent to a search, the police have to respect your privacy, for they have no general right to search “at will.”

If the police are at your home and they wish to search it, and you deny them permission to enter your home, they must turn around and go away.  If they develop probable cause that a crime is taking place in your home, they can go get a search warrant, otherwise they have to leave you alone.

If you are stopped in a vehicle, and the police approach your window and ask you for consent to search your car, you are free to say, “No thank you, I’d like to go on my way.”  In that situation, the police are required to leave you alone unless they have probable cause to search your car. 
If the police wish to search your pocketbook or your luggage, you have the right to say, “no.”  Typically this is a situation where you are trying to board public transportation or an airplane or enter a public building; you may be denied admittance, but you do not have to consent to the search.

Can you be patted down with out permission?

Similarly, an officer cannot pat you down and search your pockets without your permission. The only time an officer is allowed to frisk you without arresting you first is if you are threatening that officer and he is legitimately concerned with his safety.  In general, your personal rule should be “I do not consent to the search.” For an example of what to do in various situations, I recommend watching the “Busted” DVD produced by the Flex Your Rights organization (www.flexyourrights.org).  In Georgia, I also recommend that you remain polite with any police officer who asks you for consent to search.  Police officers are easily offended when you decline to respect their authority and cooperate with one of their requests.

Can you be arrested by refusing to consent to a search?

People think that they can be arrested for obstruction by refusing to consent to a search but that is not true.  Obstruction of justice, under Georgia law, consists of interfering with a peace officer in the lawful exercise of his official duties.  If an officer wants to search your house, car or person, his official duty is to ask you for consent if he doesn’t have probable cause and his official duty upon you saying, “no” is to leave you alone.  Therefore, you are not obstructing justice by refusing to allow a search.

Now what will happen once you refuse to consent? We have all heard about drug sniffing dogs.  Many times a police officer will say, “If you don’t consent to the search I’m going to get the dog.”   Your response should be: “Fine.” Then immediately look at your watch or phone and notice the time.  The officer has exactly 30 minutes to get that dog out there and sniff around your car. If he detains you longer than that, the search is illegal under Georgia law.  Unfortunately, we’ve all seen YouTube videos of people getting physically attacked by police officers or otherwise harassed verbally upon declining to consent to a search.  Hopefully, this will not happen to you if you are polite.

Why should you refuse to consent?

What is the point of refusing consent?  The point is to give your lawyer the means to get you out of trouble.  If the officer fails to respect your wishes and searches you anyway, he will be violating constitutional law and a lawyer can easily get the marijuana suppressed from evidence.  Once the weed is thrown out, your case is going to be dismissed.  Think how great that would be!  I have had the pleasure of seeing many clients’ faces change from abject terror to complete joy when I lead them out of the courtroom to the parking lot after winning a dismissal.
Again, it is important for you to be polite and cooperate with the officer in every other request except the request to search. Do not give him grounds to charge you with obstruction or disorderly conduct or anything else.  If he chooses to arrest you after you decline a consent search trust me, he was going to arrest you anyway.  It is not a sign of guilt that you decline to consent to a search and no court is allowed to interpret it as an admission of guilt of any crime.  You are simply asserting your constitutional rights.

If you are really worried about what’s in your car, and wish to make it crystal clear that you do not consent to any search, lock your car when you get out to talk to the police and then give the keys to a passenger.  If you don’t have a passenger, throw the keys down a storm drain or toss them deep into the woods.  You might get arrested for obstruction, but there is not going to be any question that you declined a consent search.

Why do lawyers recommend this?  Are we trying to get criminals out of jail without being punished?  No. The state of our law enforcement system right now is that police are cheating and profiling and getting away with it.  They know that the public is not informed on these issues, and they run roughshod over the Fourth Amendment rights of nonviolent tokers everyday, in every county in Georgia. The best remedy is to inform the public of their rights so that the police learn to respect the constitution and adjust their behavior.

Related Articles

• Don't consent to the search
• What happens at a DUI traffic stop?
• No Refusal Policies are Bad Law
• Do not talk to the police
• Do you understand your Miranda rights?
• What the police don't want you to know
• Miranda Warnings during Atlanta DUI stops

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