Attorney Joseph Soler
What is consent to search?
Did a police officer say that you consented to a search of your person or car when you feel like you really didn’t? Did a police offer try to scare you into agreeing to a search? If so, it may have been an illegal search.
Consent to search essentially means you voluntarily agree to allow a police officer to search. If a police officer does not have a warrant and does not believe that there is probable cause that a crime was committed, a police officer can still search you if the officer asks for consent to search and you agree.
What will happen if I do not give consent?
If a police officer does not have your permission to search (your consent), does not have a warrant, and does not have probable cause, then the officer cannot legally search you. An honest police officer will honor the law and if you do not give consent to search, then the officer will not search you.
What if a police officer searches anyway?
If the officer searches you without the necessary probable cause and without your consent, then a judge may later determine that it was an illegal search.
What happens if I am searched illegally?
If you are illegally searched then the evidence found as a result of the illegal search (such as drugs or paraphernalia) will be suppressed and the prosecutor will not be allowed to use it as evidence against you.
What happens if the drugs are suppressed?
In a drug possession case, possession of the drugs is the evidence that one has committed a crime. If the state is unable to use the drugs as evidence, then the drug charges will likely be dismissed, because the prosecutor can no longer prove the possession of drugs case.
Florida law says that consent to search must be freely and voluntarily given
There should be no tricks, no threats, no scare tactics, and no coercion. Unfortunately, this is not always the case--particularly in drug possession cases. Police officers will sometimes use scare tactics or threats of punishment to try to get consent to search.
This is not constitutional and it is not allowed. If it can be proven in court, a judge may determine that your alleged “consent” was not freely and voluntarily given, and thus was not consent at all.
Consent can be withdrawn
The law says that if a person gives a police officer consent to search, they can also later withdraw that consent. For example, an officer pulls a person over for a traffic violation and writes the driver a traffic citation. After handing the driver the citation and driver license back, the officer says, “do you mind if I search you before you leave?” If the driver says, “I do not mind” Then the driver has given consent to search.
Let’s say the officer then asks the driver to step out of the car and proceeds to search the person and the officer finds nothing illegal on the person. The officer then starts going through the driver’s wallet. Legally, the driver can say, “I do not want you to search my wallet.” By doing this the driver would be withdrawing the consent. An honest and law-abiding officer will not continue the search because the officer knows that absent probable cause and consent, the search of the wallet would not be legal.
Consent can be withdrawn through words or actions
Consent to a search can be withdrawn either verbally or non-verbally. In the above example, instead of saying, “I do not want you to search my wallet” let’s assume the driver, instead of handing the officer the wallet to search, puts it back in his pocket. It can be argued that the nonverbal action of putting the wallet back in his pocket was him withdrawing consent to search his wallet.
If police illegally stop you, then any consent given is tainted
When consent to search is obtained after illegal police activity such as an illegal stop, an illegal search, or an illegal arrest, the unlawful police action taints and renders involuntary any consent to search.
Police officers—particularly in drug possession cases—do not always follow the law
It is a sad reality that the “war on drugs” has done tremendous damage to constitutional law. Police are under significant pressure to get drugs off the street, especially when certain drugs, like opiates, are killing people. Sometimes there is even a financial incentive to the department if there are drugs found because a car, house, and/or money can be seized through forfeiture proceedings. In their zeal to find drugs, dishonest police officers will sometimes “play fast and loose” with the law and illegally stop people and illegally search their person and/or belongings.
If you have been arrested and charged with the possession of drugs, please visit the Soler & Simon Drug Possession page to learn about legal defenses that can be used in the defense of your case.