Coerced or Involuntary Consent Searches of a Vehicle
Often, police will attempt to circumvent the warrant requirement to search a vehicle. There are many reasons they do this, but one of the most common reasons is that they know that they do not have the probable cause required by a judge to grant approval for a search warrant. It is much easier for the police to just bypass your 4th amendment rights by getting a person to sign a consent to search form instead. Signing a consent form is not preferable if you want to preserve your 4th amendment rights. However, if you have signed a consent to search form, that does not necessarily mean that the consent search is valid. There are a few conditions which may invalidate a consent search.
Only where valid consent is given may a search be conducted without a warrant and without probable cause. Vale v. Louisiana, 39 U.S. 90 S.ct. 1969 (1970). In Federal Courts, a consent to search is valid if the search is “voluntary” which means it was free of coercion or duress. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.ct. 2041 (1973). In New Jersey, in order for the consent to be “voluntary” it must be free of coercion, but also the consent must be knowing with the right to refuse consent. State v. Johnson 68 N.J. 349 (1975). Most people do not realize that you have the right to refuse a consent to a search.
If, however, a person does sign a consent form, the state has the burden of proving that the consent was voluntarily given. State v. King 44 N.J. 436 (1965). In the case of State v. Hladun, 234 N.J. Super 518, 522 (L. Div. 1989) several factors for involuntariness of consent are also discussed. Common factors for involuntariness include the following:
(1) suspect already under arrest at the time of consent, (2) prior refusal to consent, (3) threat by police to seek or obtain a search warrant (4) suspect’s knowledge of the presence of contraband (5) consent obtained despite suspect’s denial of guilt (6) consent given while handcuffed. All these factors weigh against a court finding of voluntariness. The fact that a person consents to a search does not alone establish voluntariness, Bumper v. North Carolina, 391 U.S. 543, 88 S.ct. 1788 (1968).
Of course, there a few factors that are used by prosecutors to support a finding of voluntariness. Such factors that would support a finding of voluntariness include:
(1) awareness of 4th amendment rights, (2) miranda warnings given, (3) a prior confession before the consent was signed.
However, if the police already began a pre-mature search before seeking consent, any consent thereafter given is considered neither voluntary nor meaningful. Hornberger v. ABC, 351 N.J. Super. 577, 600 (App. Div. 2002). Also, if the police have illegally detained a defendant, any consent sought during that detention is void. See State v. Rodriguez, 172 N.J. 117, 132-133 (2002). Consent searches under these circumstances are void under the “fruit of the poisonous tree” doctrine. See Wong Sun v. U.S, 371 U.S. 471, 83 S.ct. 407 (1963).
The mere inclusion of these factors of involuntariness in these legal cases should be an indication that these coercive police tactics are common and that protective measures by the courts are necessary to remedy any illegal conduct on the part of the police. These factors of involuntariness exist, because police often prefer to coerce consent searches rather than adhere to the probable cause requirement. If you have been arrested or simply are not aware of coercive practices involving consent searches, here is a guide of common coercion tactics used by the police that you should look out for:
- (1) as mentioned in the case law cited above, police will often threaten to seek a search warrant. Many times, they will promise to go easier on you if you sign a consent form. However, logic dictates that if they had probable cause to get a search warrant they wouldn’t need your cooperation. They would just get the warrant. Promising to go easier on you is usually just a ploy to get you to waive your 4th amendment rights.
- (2) If you have already been arrested before consent is sought, you are at a disadvantage as you are under duress. Police often use the inherent pressure of being in custody to break down your will and make you feel as if you have already lost your rights and must comply. Police may exacerbate the adverse conditions of your confinement to increase the pressure on suspects.
- (3) If you have previously refused to sign a vehicle consent search form either at the scene or at the police station, coercive cops will often make a suspect wait in the holding area for a few hours before bringing the suspect into an interrogation room to request consent. If you do not consent, they will usually bring the person back to the holding area to wait longer. The police may pressure the suspect some more with threats to seek a warrant or other means.
There are many psychological tactics that the police use to secure consent waivers, whether legal or illegal. It is hard to address them all. The important thing to know is that you absolutely have the right to refuse consent. You also have the right to remain silent and the right to an attorney. It is important to verbally invoke your constitutional rights on the record while being interrogated and videotaped and not to relinquish your rights at the prompting of a disinterested police officer. They do not want you to assert your rights but rather to give them away. This is not preferred. But if you have signed a consent form that does not necessarily mean that you have waived your 4th amendment rights if the consent was involuntarily obtained or coerced, or if the police conducted an illegal pre-textual search beforehand that precedes the consent search. That is another reason that consent searches are sought by police. Sometimes they desire to cover-up a prior illegal search they conducted without a warrant. It is important to remember that vehicle consent searches cannot be considered voluntary if the police already illegally searched it without probable cause or another warrant exception. In these circumstances, always be sure to check evidence logs or original handwritten inventory reports to see if they pre-date the consent.