E-Newsletter Edition: August 14, 2008
Response Provided By: Brian S. Batterton, J.D.
Always note that state law may be more restrictive on police power than the U.S. Constitution.
QUESTION:
Officers arrest the driver of the vehicle for driving suspended and the passenger for drug paraphernalia. Officers transport the subjects to jail. At the jail, officers asked the female subject where she is staying. The female subject tells us the Super 8. We ask her whose name the room is under. The female tells us her name. We ask her for written consent to search her hotel room for any narcotics or paraphernalia. She gives us written consent. Officers leave her at the jail and go and search the hotel room. Officers find a methamphetamine pipe. Does the female have to have the ability to withdraw search consent even if she tells us that there is nothing in the room and gives a permission to search along with her key.
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ANSWER:
When a person gives consent to search an area where they have a reasonable expectation of privacy, such as a motel room, they have the right to limit the scope of the consent or to withdraw consent at any time prior to the search being completed.
In answering this question, an additional fact is needed. Particularly, does the consent to search form that was signed by the defendant state that she has the right to revoke her consent at any time? If so, she must have the ability to do so, since that is what she consented to. However, if no attempt to withdraw the consent was made and this can be proven, then the fact that she was not on the scene of the search at the motel room should not matter. However, if she was alone at the jail (not around law enforcement or jail personnel) and she later testifies that she wanted to withdraw her consent, but was unable, the evidence obtained from the search will likely be suppressed.
If the consent to search at issue did not include a statement as to the duration of the consent, the person has a right to revoke the consent or limit the scope at any time. If the person is unable to do so, because they are held at the jail, and the person later testifies that they tried or desired to revoke their consent, the evidence may be suppressed.
However, a person could consent to have their motel room or other property searched explicitly while they are detained in a holding cell and the search be valid. In New Jersey v. Santana, officers stopped a vehicle and saw indicators that drugs may be present. The officers obtained consent to search. Santana specifically consented to a search of his car while he was to be detained in a holding cell. The Superior Court of New Jersey, Appellate Division, stated that, if the defendant implicitly or explicitly waived his right to revoke his consent when he agreed that the search to which he had previously consented could be carried out while he waited in the holding cell. If so, we see no impediment on the facts developed below to the introduction of the cocaine as evidence. i
Practice Pointer
One method of ensuring that a person has the right to revoke their consent when they are being held “off-site” or away from the scene of the search is to have an officer that has immediate contact (via radio or cellular phone) with the officers executing the consent search stand by with the consenting party. The officer who is standing by with the consenting party tells that person something like “if you need me to relay any message or instructions to the officers doing the search let me know and I’ll do it immediately.” This should suffice to ensure the consenting party has the ability to limit the scope of the search or revoke consent, as they are allowed to do.
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