How to Challenge the Voluntariness of a Consent to Search

Police officers who conduct searches without a warrant will often describe the circumstances of their search-and how they obtained consent from the suspect-in concrete terms: “I asked if I could search in the trunk, and he gave his consent.”

Was the Consent Voluntary?

However, this testimony doesn’t tell the whole story, as your St. Augustine lawyer knows. What the officer sees as consent to a search may be more accurately described as the suspect’s compliance with an order. For example, if the police officer states, “I’m going to look around here” and the suspect responds with “Okay,” this does not constitute voluntary consent. If the police knock loudly and repeatedly on a door while yelling “Open up!” to the occupants, opening the door does not constitute voluntary consent to entry.

Other Defenses

However, if your defense comes down to putting your word against that of a law enforcement officer, your defense is likely to fail. Your St. Augustine lawyer might instead try to use the defense witnesses’ and officers’ statements to present other facts that are in alignment with the officer’s description of how the conversation happened, but that undermine the suspect’s ability to voluntarily consent. This may involve pointing out that the defendant did not understand English well, or that due to the defendant’s age, the presence of the police was too frightening. The attorney may also try to prove that you were ill and in poor physical or mental condition.

Another possible tactic is to challenge the officer’s assertion that he had probable cause to conduct a search. If an arrest is found to be unlawful, any consent given later is unusable. Your St. Augustine lawyer might try to have such evidence suppressed by attacking the probable cause or reasonable suspicion the officer claims justified stopping you.

If your St. Augustine attorney doesn’t see any hope of getting evidence suppressed before the trial, he may adopt the opposite approach and get the officer to talk about how enthusiastically and freely you consented to the search. Your attorney can then bring this up at trial and argue that you acted unafraid of the search because you were innocent.

Contact Us

For more help with search and seizure issues in your criminal case, contact an experienced St. Augustine lawyer at the Attorneys at Canan Law. Call (904) 849-2266 for a free consultation.


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