What Constitutes A Valid Consent To Search?

No one can be convicted of a criminal offense in the United States unless the police can produce enough evidence to prove the case beyond a reasonable doubt. This elevated standard of proof intends to prevent the great injustice of convicting and punishing an innocent person.  It is the unique hallmark of the American criminal justice system that a suspect is innocent until proven guilty.  In theory, this system offers many advantages to the criminal suspect.  However, in practice, many people who have been accused of crimes simply give up their rights and convict themselves.

One critical way that police obtain evidence against defendants is through a search of the suspect’s person, car, or home. Experienced police officers know how important searches can be. Often police stop suspects based on a mere suspicion, and they need to find real proof to make their case.

 For example, in order to obtain a conviction in a California drug possession case, the police must recover the alleged drugs and the prosecutor must admit them into evidence.  Similarly, in a California theft or burglary cases, the government’s case will frequently rise or fall on the ability of the police to recover the allegedly stolen items from the suspect’s possession.

Often, these items of evidence are recovered from suspects at or near the time of arrest. When they encounter suspects, experienced police officers know that they must obtain evidence, so they ask the suspect to consent to a search.

List of Information

A Valid Consent Must Be Voluntary

In order to be valid, a consent to search must be given “freely and voluntarily.” If consent is given in response to police coercion or tricks, then the consent is not valid and the subsequent search is illegal. Determining when consent is valid can be a very complicated legal determination.  This is where a knowledgeable defense attorney can help a criminal suspect even the score.  If you have consented to a search that produced evidence against you, it is critical that you consult an experienced California criminal defense attorney.  If the police used coercive conduct to obtain your consent, then your attorney may be able to file a motion to suppress that evidence.  Certain situations are obviously coercive, such as a police officer holding a gun to the head of a suspect and threatening to harm him if he does not give consent.  There are many more situations, which are not so overtly coercive, but which might nevertheless be coercive enough to invalidate a consent.

Example: Consider the case of a man wearing a backpack, who was walking down the street with an associate.  A police officer approached the man, and he ran.  The officer stopped the man and questioned him, asking where he was going.  The man responded that he was going to a home of a friend.  The officer, then asked, “Do you have any objection to me looking in your backpack?”  The officer told the man that there had been burglaries in the area.  The man responded, “Do you have a warrant?”  The officer told the man, “No, but you shouldn’t have any objection if you aren’t doing anything wrong.”  The man then took off his backpack and handed it to the police officer.  The officer searched the pack and discovered incriminating contraband.

A California appellate court considered these facts in Crofoot v. Superior Court (1981) 121 Cal.App.3rd 717, 725.  The court held that the police did not obtain a valid consent in this case because the police officer’s statement contained an implicit threat that by exercising his right to refuse the search, the suspect would be incriminating himself or admitting participating in the illegal activity.

As a former prosecutor, Diana Weiss Aizman of the Aizman Law Firm has extensive experience and unique insight into the analysis of illegal police conduct and the suppression of evidence that was illegally obtained by police. Contact the Aizman Law Firm right away if you have been charged with a criminal offense.


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