It is becoming increasingly common to read police reports where evidence of drugs was allegedly found after a "consensual" search only to speak to the defendant who is adamant that he or she never gave the police officer consent to search. This is becoming common to the point that there is a judicially recognized phrase to define it; it is referred to as: "consent to search under objectively questionable circumstances."
If this has happened to you, do not give up all hope. Though it can be difficult to convince the judge that you are the one he or she should believe and not the police officer, it may not be impossible. This is because police officers often only know the law to a certain degree. They will think that they are saying and writing the "right" things to convict a person, but will overlook many details that, if accurately and properly presented to the judge, will indicate that any supposed consent to search was in fact not freely and voluntarily given.
There is a tremendous amount of case law detailing specific facts and circumstances that indicate when a search is consensual and when it is not. Whether a search was consensual or not turns on much more than the allegations of the police officer—various factors such as the amount of officers present, their specific words and actions, and where the officers were positioned are just a few variables that will affect whether a search was truly consensual or not.
The art and science of the criminal defense attorney involves discovering the necessary facts, presenting them to the judge in the proper fashion, and arguing the relevant case law.
If you would like to meet with one of our criminal defense attorneys for a free case evaluation, call (941) 444-5128.
Also, for an excellent article/commentary on this issue, see this from staugustine.com.
For more information on our law firm and how we defend drug possession cases, please visit the Soler & Simon Drug Crimes page.