Consent Searches: When are they unlawful?
Warrantless SearchesSearches conducted without a warrant are presumptively unlawful and the police officer must have some legitimate reason to bypass the legal requirement of obtaining a search warrant.
Nevertheless, Court's will often conclude that a warrantless search is "reasonable" if the officer had probable cause to believe evidence was present and he was faced with an an emergency situation.
While the numerous exceptions to the warrant requirement seem to have swallowed the general rule, warrantless searches of one's residence or home is disfavored by Courts. As the saying goes, "a man's home is his castle."
Whenever police officers enter your residence to conduct a search for evidence you have the right to insist that they obtain a search warrant.
Occasionally, however, police officers will attempt to gain entry into one's residence by obtaining the residence owner's "consent."
A defense attorney may examine the facts and conclude that such consent was not really voluntary.
Consent FactorsIn assessing the voluntariness of consent, courts will look at several factors such as degree of coercion by the police and the number of officers present; whether the police notified person of right to refuse consent; whether the police threatened to obtain a warrant if consent was not given; the personal characteristics and the actions of the individual giving consent; and whether the person was under the influence of drugs, alcohol, or traumatized in any way. The Courts have often stated, "Where there is coercion, there cannot be consent."
Courts also look at the scope of the consent. Did you give permission to search one room or the entire house?
Therefore, even if you have allowed the police into your residence to "look around," that does not necessarily mean you authorized them to go through every drawer in your bedroom.
Police Trickery is O.KThe Courts have allowed police officers to use a ruse or a ploy to get individuals to consent to searches of their homes. Police officers can be very persuasive and effective at getting you to let them look around -- that's their job.
So if you believed that "everything will be alright" if you "just assist us with our investigation," you will likely be in for a rude awakening if something incriminating is found in your home.
When in Doubt, Just Say NoRemember, you have a right not to talk to police and a right to insist on a search warrant. This does not mean that you are guilty of anything, but rather that you object to the unwanted intrusion into your private life.
If you have consented to a police search of your home, you should consult with a qualified defense attorney to determine if the consent was voluntary. If a court concludes that there was no real "consent" it may suppress or "throw out" the illegally obtained evidence.