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Did You Really Consent to the Search?

When it comes to whether a person lawfully consented to a search of his or her home, in Connecticut — as elsewhere — the inquiry does not end with a simple “did you agree” to the government’s intrusion.

North Carolina v. Bumper: Consent for Police to Search a Home

The first question that must be asked is whether the government (commonly police officers) obtained the alleged consent after alerting the person that they already had, or could easily obtain, a search warrant. The U.S. Supreme Court addressed this issue in North Carolina v. Bumper, 391 U.S. 543, 548 (1968). In Bumper, the officers alerted the individual that they possessed a search warrant for her home, and she testified that she:

  1. willfully let the officers into her home to search for the weapon;
  2. had no objection to them conducting the search wherever they wished;
  3. was never threatened or coerced in any manner to consent to the search; and
  4. the officers were cordial, treated her well and she did not feel forced in the slightest degree.

Despite the consenter’s account that she was not threatened or forced in any way, the Supreme Court found that her consent was not valid. The Supreme Court ruled:

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion – albeit colorably lawful coercion. Where there is coercion there cannot be consent.

Thus, even when the police obtain voluntary consent from someone, it may still be invalid because that person did not believe he or she had a right to resist or object to the search.

Knaupp v. Texas: Unlawful Government Entry

Secondly, an unlawful government entry may also “taint” the consent of the individual. The Supreme Court has identified the following factors as relevant to this consideration:

  1. the giving of Miranda warnings;
  2. the temporal proximity of the illegal entry and the alleged consent;
  3. the presence of intervening circumstances; and
  4. the purpose and flagrancy of the official misconduct.

Knaupp v. Texas, 538 U.S. 626, 633 (2003). When a court is conducting this analysis, the burden is on the government to establish that the consent was voluntary and that any taint had dissipated. When the government informs an individual that they have found illegal contraband on the premises, then there is a strong possibility that the consent was tainted by the illegal entry. The key factor in this situation is whether there is a sufficient time between the unlawful entry and the consent such that the consent was not the fruit of this unlawful entry. Each case is very fact-specific as in some cases several minutes is sufficient, while in others thirty minutes is not enough time.

The Upshot: Even if You Consent to a Police Search, the Evidence May Not be Admissible

Thus, even though you or someone has “consented” to a government search, this does NOT mean that the evidence is always admissible. If a prosecutor is using seized evidence against you in a criminal case, your criminal defense attorney should look carefully into the circumstances of the police search and your consent to that search. If the consent was not valid or voluntary under the circumstances, the judge may rule that the evidence cannot be used against you at trial.

If you have been charged with a crime in Connecticut, our West Haven criminal defense attorneys offer decades of experience in protecting our clients’ Fourth Amendment rights. We encourage you to contact us for a free, confidential consultation.

Categories: Criminal Defense

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