Denying Consent to Search

Here’s our question from an officer in Minnesota. Does denying consent to search also end the consensual encounter? All right, good question.

If, during a consensual encounter, I asked for consent to search their bag, their person, their vehicle, and they deny consent, can I continue the consensual encounter to try to build reasonable suspicion, (or gather some other type of info), or would the contact with the person have to cease?

All right, I’ve got your answer. Number one, the first answer “NO.” If they deny consent search during a consensual encounter, that does not mean the consensual encounter is done. It is a simple question. You ask them, they gave you an answer. You can absolutely continue your consensual encounter.

Now, the key here is; would a reasonable person feel free to leave? Would a reasonable person feel free to terminate the encounter? And if the answer is “yes,” you are good to go. If the answer is no, it’s a detention.

Also, if they do consent to a search of their person during this encounter with the act of physically touching them, touching their pockets or maybe the sock area and so forth, does that turn this into a seizure? The answer is “no.”

The next question is; “If they consent to a search of their person, can this also mean the physical touching part?” The answer is “yes.” Because that’s part of the scope of a search.

When you ask people for consent to search their person, they are also implicitly allowing you to do those things necessary to conduct that search, which obviously requires physically touching their person.

We obviously don’t need to tell you this, but be professional as far as where you search them, and so forth, and how you search. These are all things that the court is going to look. Some consent searches can obviously become very intrusive, and look more like a search incident to arrest. We don’t want that!

Whatever the person believed you would search, sweeps of the groin area and so forth are probably a no-go unless they give you express consent for that.

So again, this is not the same as a search incident to arrest this is just a consensus search. But overall, you’re good to go. I hope this helps you get it right every single time.