May 14, 2018
This morning, NHBA’s latest edition of Beyond High School: A Guide to Your Rights and Responsibilities, was featured on NHPR’s The Exchange. Attorneys Jennifer Eber and Robert Ducharme spoke with host Laura Knoy about the contents of this book and the importance of making this information available to young adults.
On the topic of Search Warrants, Attorney Ducharme expressed an opinion that does not reflect the information provided in Beyond High School. This section of the book is printed in its entirety below.
The Need for a Search Warrant
Normally, a judge issues a search warrant to permit police officers to search a particular place or person for certain items. Like an arrest warrant, a search warrant is based on sworn testimony, which established probable cause for the search and seizure of the items. In the following cases, a police officer does not need a search warrant:
- When you are lawfully arrested, the police officer may search you and the area immediately surrounding you which could include the interior of our vehicle. Again, you may not interfere with this search. The U.S. Supreme Court has stated that the right to search you and the area surrounding you does not apply when you are issued a traffic citation.
- A police officer may search you or your property without a warrant if you consent. You have the right to refuse to consent, but the officer is not obligated to inform you of this right.
- A police officer may sometimes search without a warrant when there is insufficient time to get a judge’s approval because of emergency circumstances or because evidence may be removed or destroyed. The existence of these circumstances requires “a compelling need for immediate official action and a risk that the delay inherent in obtaining a warrant will present a substantial threat of immediate danger to life or public safety.” State v. Theodosopoulas, 119 N.H.573 (1979).
If the police do not have a warrant, you are under no obligation to consent to a search, no matter how much you are pressured to do so. However, once the search has begun, you should not interfere with the search.
Whether the search is legal is for the court to determine at a later date. The determination is not made merely by the suspect. Ask the police officer to note that you do not consent. Common sense dictates that forcing the police to obtain a search warrant when you have absolutely nothing to hide is expensive and counterproductive. If you know the police will find what they are looking for as soon as they obtain a search warrant, refusing to consent to the search and forcing them to obtain a search warrant is nothing more than an exercise in futility. If a search is performed, with or without your consent, remember the details and relate them to an attorney.