Police get away with illegal searches for drugs, weapons, and other contraband when the accused fails to challenge the legality of the search. If no one challenges a search, the judge assumes it was done legally.
Consent Must Be Valid
The United States Constitution provides us with the right to deny law enforcement consent to search our persons, homes, cars, or other property. Sometimes police ask for consent before searching. Several law enforcement agencies not only ask for consent, but also request the person to be searched to fill out a written “consent to search” form.
But not all “consensual” searches are legal. When law enforcement intimidates, coerces, or threatens someone to gain consent, court will find the consent and subsequent search to be invalid.
For example, if a police officer tells a driver, “If you don’t consent to search, I’m going to get a drug dog and we are going to tear your car apart until we find drugs,” that is coercion. Similarly, if the police officer says, “If you consent, I won’t have to bring a drug dog out here. If I have to bring one, I am going to keep you here all night,” that is also coercion.
In another example, a police officer saying, “Look, I am going to search the car either way, so you’d better give me consent. If I have to bring the drug dog out here, I’m going to search anyway and the prosecutor is not going to go easy on you,” is coercion. In this last example, the officer has basically told the accused that the car will be searched regardless of consent.
Bottom line: For police to lawfully search, they must have a legal right to do so or valid consent from a qualified person. If the consent was a product of a threat or coercion, it is not valid, and the search will be deemed illegal.
When police unlawfully search a person, place, or thing, the evidence is often excluded at trial because law enforcement should not be able to benefit from illegal conduct.
The Attenuation Doctrine
Unfortunately, sometimes law enforcement’s illegal activity does not dismiss evidence found during unlawful search.
The Attenuation Doctrine states that unlawfully seized evidence can be admitted in court when the connection between the unlawful police conduct and the evidence obtained is remote in time or was interrupted by intervening circumstances.
Imagine that police unlawfully stop a person on the street and accuse him of possessing marijuana without reasonable suspicion to believe the person has any marijuana. During the stop, law enforcement learn that they have a certain arrest warrant for that person. Under the Attenuation Doctrine, the unlawful stop is attenuated by the warrant and the court may find that the subsequent arrest and search based on the warrant is legal, even though the initial stop and seizure was illegal. The Attenuation Doctrine does not allow police to use evidence if the officer’s conduct was “purposeful and flagrant.” However, “purposeful and flagrant” are fairly vague terms. In United States v. Fox, a federal court found it is not necessary to find police acted in an outright threatening or coercive manner to determine that the officer’s conduct was “purposeful and flagrant.” The Fox opinion indicates that misconduct is generally found where:
- The police officer’s misconduct was obvious or he knew at the time that his conduct was likely unconstitutional; and
- The misconduct was investigatory in design and purpose and used in hopes of finding evidence.
But What About the Search Warrant?
The general rule is that police need a search warrant before searching a person, his property, or his home. However, there are many exceptions to the search warrant requirement.
Furthermore, a search warrant is not needed when law enforcement has valid consent to search a person, place, or thing.
No Warrant, No Problem
Often, in cases involving computer crimes or drug crimes, law enforcement will realize they want to search something before they try to obtain a search warrant from a judge. In these instances, law enforcement will often secure the area intended to be searched and then wait to obtain a warrant. Sometimes law enforcement will secure a house but not search it until a warrant is obtained. Similarly, if law enforcement wishes to search a person’s cell phone during an arrest but do not have valid consent, police will confiscate the phone and it will remain in police custody until police obtain the search warrant or the warrant is denied.
The Role of the Criminal Defense Attorney
Criminal defense attorneys protect the Constitutional rights of not only their clients, but society in general. Criminal defense attorneys hold the government to the standard and if police unlawfully search, criminal defense attorneys fight to keep the evidence out of court. In some cases, attorneys will sue law enforcement agencies for unlawful searches as well.
If you have been the victim of an unlawful search, contact the criminal defense attorneys at Berry Law Firm.