When is a police search consensual in Virginia?

Police searches are legal in essentially three situations: (i) after a legal arrest, (ii) after a legal investigatory stop, and (iii) after receiving consent from the person to be searched.[1] The police need some degree of suspicion that a crime is afoot or else their arrest or investigatory stop will be deemed an unreasonable search or seizure under the 4^th Amendment of the U.S. Constitution.  The police are therefore forced to seek consent to search when lacking sufficient suspicion that a crime is afoot.

The law is consequently full of tales of consensual searches. Virginiajudicial opinions alone make 289 references to “consent to search” according to Lexis.  People appear to be routinely consenting to police searches of their pockets, their cars, their homes and their possessions. It’s a shocking result when one considers that people are allowing absolute strangers to rummage through their stuff.

So why do people allow it to happen?  Well, what sounds like a simple request to search on paper often sounds more like a demand in person. Indeed, what sounds like a simple request to search on paper often is ripe with the implication that punishment will follow from refusing to allow the search in person, whether it be performing the search anyway or deriving a negative inference that something illegal is happening. These nuances are often not addressed in judicial opinions. These opinions instead brush over them as if people consent to police searches like this:

Officer:        Good afternoon sir! How are you friend?

Citizen:        I’m doing quite well. How are you?

Officer:        Wonderful. You know what would be fun for us to do? If I did a pat-down search of you and checked your pockets. Sound good?

Citizen:        That does sound like fun! Go ahead! I consent!

The Virginia Court of Appeals case, Hargrove v. Commonwealth, 2012 Va. App. LEXIS 25 (2012), is no different. In that case, a police officer confronted the defendant, asked the defendant if he had “anything illegal,” including weapons or drugs, and then asked if the defendant (who had responded “no”) would prove it by allowing the officer to pat him down and search his pants pockets. The defendant, who had drugs in gym shorts pockets underneath his outer pants, consented. The officer searched the defendant’s outer pants pockets and found nothing illegal. The officer then asked for permission to search the defendant’s gym shorts pockets. The defendant said that there were no such pockets and tried to hide them. The officer searched the defendant’s gym shorts pockets anyway. The trial court held that this particular search was legal despite the absence of consent.  The Virginia Court of Appeals agreed. It held that the officer had reasonable suspicion that the defendant committed a crime because he lied about his interior pockets, tried to hide his interior pockets, and did so after agreeing to a search of his outer pockets. It did not bother addressing the legality of the initial search that led to everything. It just assumed that reluctantly granted permission to search still constitutes permission.

So what can we learn from Hargrove?  You do not need to cooperate. Your cooperation could lead to incrimination. And your refusal to cooperate, without more, is not enough to justify the officer from seizing you under the case of Illinois v. Wardlow, 528 U.S. 119, 125 (2000).