This article addresses the following questions:
Although people often agree to police searches when they feel pressured or intimidated, those feelings don’t necessarily mean that the resulting search is illegal. On the other hand, officers can go too far in manipulating a suspect, to the point that a court will hold that the suspect's consent was invalid. In that kind of situation, evidence the police find will probably be inadmissible in court.
(For related reading, see our article on officers getting consent by concealing their identity.)
In the following scenario, a court would probably consider the search illegal and suppress the evidence:
Officers want to search a home but don’t have a legal justification.
Officers tell Suspect they have a search warrant even though they don’t, and that Suspect had better let them search.
Suspect agrees to let Officers search the home.
Officers find incriminating evidence.
Consider this illustration:
The police arrest Susanne on the front porch of her house. They don’t have a warrant, but they nevertheless barge into the actual house and begin to look for evidence. Once inside, they knock on a bedroom door, and Sally, Susanne’s sister and roommate, comes out. They ask if they can take a look around the house, but they also tell Sally that a search warrant is on its way. In reality, the officers haven’t even sought a warrant. Sally gives them the okay to search the house, and in one of the rooms they find evidence incriminating Susanne.
The judge holds that the search of the home was illegal. Not only had the officers already begun searching before they talked to Sally, but they also falsely told her that a warrant authorizing the search was on its way. Consent given under these facts couldn’t be considered voluntary; the circumstances indicated it would be futile for Sally to refuse. (People v. Mullaney, 104 Mich. App. 787 (1981).)
Another, perhaps more common, way officers interact with suspects is by being less than forthcoming about why they want to take a peek in a home. Usually, if officers simply fail to tell a suspect that an inspection could lead to criminal charges, consent will be valid. On the other hand, consent may be no good when officers mislead the person about who or what they’re investigating.
Federal agents have an indication that Bobby might have an illegal firearm. They go to his house; Bobby, who has a prior felony conviction, understands that the agents are there to look for a machine gun. He tells the agents that he has other guns. He lets the officers into the house and shows them several firearms. None is a machine gun. He is later charged with unlawful firearm possession by a convicted felon.
A federal appeals court holds that Bobby's consent was valid. It observes that officers don't have to give an "encyclopedic catalogue" of everything they could be interested in finding in a search. The court also notes that there was no indication that the officers set out with a motive other than to find the machine gun they suspected Bobby had. According to the court, that weapon, rather than Bobby's potential illegal possession of other guns, was their motivation. And they didn’t indicate to him that nothing other than a machine gun could lead to prosecution. The guns are therefore admissible evidence. (United States v. Davis, 749 F.2d 292 (5th Cir. 1985).)
An agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) begins investigating Max. Max reportedly owes money to a suspected firearm trafficker and is selling drugs out of his apartment. The agent surveills Max’s apartment for several months, but doesn't see anything that would establish probable cause for a warrant. So, the agent and a colleague knock on Max's door and report that they are there because they have received an anonymous tip that there are drugs and bombs in the apartment. The agents explain that it is matter of community safety. The primary agent asks if he and his colleague can come in and have a look around. He says, “We're not here to bust you on a bag of weed. ... We have bigger fish to fry than a small bag of weed.” Max, who has a prior felony, gives the agents permission to search the apartment. During the search, they find a loaded handgun in a hole underneath a sink.
The court finds that the search was illegal. It explains that “deception and trickery” are factors that can make consent involuntary. Another factor, the court explains, is whether officers tell a defendant that he or she has a right to refuse consent to a search. (Officers generally aren’t required to advise defendants of the right to refuse, though.) The court ultimately holds that Max could have reasonably believed he and others were in danger because of a bomb. How could he say no to that? His “consent” was therefore involuntary. (United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011).)
Consult an experienced lawyer if you would like an understanding of the how the law in your jurisdiction applies to a particular situation. A knowledgeable lawyer will be able to evaluate the circumstances and assess your options.