Reasons Not To Consent To A Search - Even If You're Innocent | Part 2
Tulsa criminal defense attorney Stephen Cale explains why you shouldn't consent to a search, even if you're innocent. This is for educational purposes only. It is not legal advice. Seek an attorney if you've been charged with a crime.
You Don't Know What Police Might FindSo, you may say, *I don*t have anything illegal, and I*m not doing anything illegal.* But think about this situation. You and your friend are in a car. You*re the driver and your friend is the passenger. You*re going down the highway and you get pulled over because you*re speeding. The officer asks if you have anything illegal in the car, like drugs. You replied, *Of course not!* Then the officer asks if he can search your car. You reply, *Sure. Why not? I don*t have anything to hide.*
As the officer*s rummaging through your car, he finds a marijuana pipe underneath the front passenger seat where your friend was sitting. Now you*ve got a problem. The officer decides to arrest both of you for joint possession of drug paraphernalia. You won*t be able to contest the search of the contraband because you consented to the search of your vehicle. This makes it harder * if not impossible * to argue that the search was illegal, the evidence of the pipe should be thrown out, and the case should be dismissed.
Now, of course, your attorney will be able to argue that you had no knowledge of the drug pipe. One of my client*s had a marijuana possession charge. She was a passenger in her friend*s car. Unknown to her, there was a marijuana-packed cigarillo in the passenger door compartment. It took a lot of work, but I was able to get the case dismissed.
Things would have been better had there been no search of her friend*s car. In fact, my client might not have been arrested without a search. Are you looking for the best criminal attorney to offer?
Things like this actually do happen. Friends or acquaintances will leave or hide illegal substances in a car, a room, or bag, for example, without you even knowing it. You thought you didn*t have anything illegal, but it turns out you did. Again, while in some instances there may be a way to successfully fight the charge or even get an acquittal at a jury trial, your consent has made it all the harder for that to happen.
What To Say If An Officer Asks For Consent To SearchSo, what should you say if an officer wants to search your person, car, house, apartment or any other property?
That*s easy: *No, officer. I do not consent to a search, and I want a lawyer.*
The first part of your statement tells the officer in plain, simple terms that you do not consent. Don*t say things like *I don*t think that*s a good idea,* or *You don*t need to do that.*
The second part * that you want a lawyer * is powerful. The reason for this is that when you say that you want a lawyer, police must stop questioning you.
An Officer Can't Force You To ConsentTo be valid, a consent to a search must be voluntary. The Fourth and Fourteenth Amendments to the U.S. Constitution require that a consent not be coerced, by explicit or implicit means, or by implied threat or covert force.
In determining whether a person voluntarily consented, courts look at the *totality of the circumstances.* That means that the court will look at all relevant facts concerning the search, rather than just one factor.
Although officers are not required to advise a person that he or she has a right to refuse consent to search, this is one factor considered in the totality of circumstances. However, police tactics are coercive when they imply an individual has no right to refuse consent to search.
Case Examples Of When Consent Was Deemed InvoluntarySo, remember, consent must be voluntary to be valid. Here are some examples where courts have found that consent was not voluntary:
An officer*s false announcement that he has a warrant negates the possibility of consent. Bumper v. North Carolina, 391 U.S. 543 (1968).
A statement is coercive when it *indicates that there are punitive ramifications to the exercise of the constitutional right to refuse consent* Edison v. Owens, 515 F.3d 1139, 1147 (10th Cir.2008).
United States v. Medlin, 842 F.2d 1194, 1198 (10th Cir.1988) (affirming suppression of evidence because *it seems reasonable that Medlin would have believed when faced by federal and state officers with guns drawn that he had no right to resist* the search.
This same principle applies when deceit or trickery is used to imply an individual has no ability to refuse consent.
United States v. Hardin, 539 F.3d 404, 424*25 (6th Cir.2008) (*[A]lthough a ruse or officers* undercover activity does not usually violate individuals* rights, we have noted that where, for example, the effect of the ruse is to convince the resident that he or she has no choice but to invite the undercover officer in, the ruse may not pass constitutional muster.*
United States v. Escobar, 389 F.3d 781, 786 (8th Cir.2004) (holding consent to luggage search was involuntary when police falsely claimed a drug dog had alerted on the bag, because police may not *convey a message that compliance with their requests is required*)
Not all deceit and trickery is improper. For example, *an undercover agent may gain entry to a person*s home by deception and purchase narcotics with no violation of the fourth amendment.* Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir.1989) .
But when the police misrepresentation is so extreme that it deprives a person of the ability to make a fair assessment of the need to surrender his privacy, the consent should not be considered valid.