0

The Supreme Court decided in Miranda v. Arizona that people had to be told their rights under the 5th and 6th Amendments, since if people don't know that they have those rights, they don't really protect them. Those rights, of course, can be waived, as can the right not to be searched without a warrant.

If a police officer comes to your house without a warrant, says that they think you have illegal drugs, and asks if they can enter to search the property, do they have to disclose that it isn't legally required since there isn't a warrant? A reasonable person may feel as though they don't have a choice.

  • A reasonable person would decide on the merits whether they want to give such permission, and would likely either decline on privacy grounds or approve on cooperation grounds. – Nij Feb 3 '18 at 3:48
  • @Nij a reasonable person might not understand that declining is an option. – phoog Feb 3 '18 at 6:42
  • If offered a binary choice, a reasonable person understands that yes and no are the two possible answers. The officer has asked, not told. – Nij Feb 3 '18 at 7:23
  • 2
    @Nij, that doesn't comport with reality. People mistakenly believe they must speak to police all the time. It's why defense attorneys can't tell their clients enough to simply shut their mouths. No lay person is pondering, "Hmm, was I just asked or was I just told?" – A.fm. Feb 3 '18 at 13:01
  • But that's not what "reasonable person" means! – Nij Feb 3 '18 at 19:29
2

There is no search analog to the Miranda requirement. The Supreme Court in Miranda didn't just decide that people had to be told their rights, for all rights in all contexts. Miranda applies just to 5th and 6th Amendment rights, in case a person is being held coercively. If you are free to go, you need not be apprised of your rights: so, if the police are just asking questions when you are not being held, they are not required to give a rights warning. Likewise, they are allowed to request permission to conduct a search. It is true than many people do not understand that a request is distinct from an order. A useful phrase to remember is "Am I free to go?". If the answer is no, you are busted and they can search you. If the answer is yes, you don't have to let them search you (to avoid the ambiguity of silence, refusing permission to search is not a bad strategy, unless you want then to search you – e.g. if you want to get on the plane).

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.