Consent To Search – When To Deny?
A consent to search occurs more often than not. Many people believe that if they agree to consent to search it may provide for a better outcome with the police officer. That is not always true, and it is best to never consent to search. The State or City Prosecutor are the only individuals who can make deals once criminal charges are issued. Police cannot do that.
If the consent to search is properly given then police will not need a warrant to effectuate the search. However, when consent to search is denied Police are not allowed to search, unless the situation falls within one of the several narrowly defined exceptions to the search warrant requirement. Moreover, any consent to search is also going to be dependent on whether the search applies to the person or property.
What is required in order to provide or obtain consent to search? In order to be proper the consent to search must be voluntary (or freely given), specific, and unequivocal. Therefore, it must be free from coercion. The court will look to specific factors and the totality (complete set) of circumstances to determine whether the consent to search was proper. The following are factors courts review in determining that conclusion:
“[W]hether defendant was a youth; whether defendant was uneducated or conversely, well versed in the law; whether the information on which the investigation was based was unlawfully obtained; whether defendant was given his Miranda rights; the length of the detention and the length and nature of the questioning; the use of physical threats; the familiarity of the surroundings; defendant’s freedom of movement during the questioning or search; defendant’s cooperation or lack of cooperation in the search; the number of officers present during the interview and search; whether the officers told defendant that he did not have to consent to the search; and whether the officers suggested that defendant give them the thing seized.” See United States v Hearn.
It is always important to remember that you do not have to consent to search when requested by an officer. This applies to any situation, even when a driver in a motor vehicle or a passenger. You are even free to change your mind if you initially consented. At the end, the consent to search will boil down to the circumstances and facts that are present within the individual case. This is why it is essential to never consent to search, and instead force law enforcement to perform their job.
By not providing your consent to search you are maintaining your constitutional right to be free from warrantless searches. This can also in-turn provide a better or more hopeful case for you and counsel once you are at the formal setting of the criminal process depending upon the circumstances of your case. Always know the law, maintain your rights, and lawyer-up with Josh Jones. He has your back.
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