Attorney Question & Answer - Consent to Search
Criminal Defense Question & Answer Page
(This question was submitted by an anonymous attorney on December 2008)
I have been a Fort Lauderdale Criminal Defense Attorney for five years in Fort Lauderdale. I recently had a hearing on a Motion to Suppress in Collier County. My client had been arrested after police officers found cocaine in his home. The testimony in the motion established that my client was awakened by police officers at 2 a.m. and asked if they could search his residence, to which he declined. Several officers subsequently stayed at the house with the suspect while two others went to obtain a search warrant. It was undisputed that the officers had probable cause to obtain the warrant due to previous controlled buys. However, in an interesting turn of events, our firm's client consented to the search of his residence prior to the warrant being obtained. Our argument, of course, was that consent to search a residence at 2:00 in the morning with such a show of force could not possibly be voluntary. What are your thoughts?
Your client's consent to allowing police officers to search his residence could never be considered voluntary. Under Norman v. State, 379 So. 2d 643, the court held that a defendant's consent is determined by analyzing all of the circumstances leading up to it. In this case, the early hour of the morning, the fact that your client was asleep when the police officers arrived, the sheer number of police officers on the scene, and undoubtedly the length of detention while officers sought a warrant would negate any consent as being voluntary. In Kutzorik v. State, 891 So. 2d 645, a show of force by officers is capable of rendering consent invalid if the time and place of the encounter is unreasonable and the amount of officers is significant in number. Consequently, you wouldn't have a problem here if it weren't for the inevitable discovery doctrine. Unfortunately, the voluntariness, your client's allowing police officers to search his home isn't really what is at issue. The fact that the officers were on their way to obtain a search warrant and that it is undisputed that they had probable cause to obtain such a warrant would be enough to establish that with or without consent they would have found illegal narcotics in his house anyway. Take a look at McDonnell v. State (opinion filed May 12, 2008). I think the facts of that Appellate case mirror yours pretty closely.
The world of criminal defense is constantly changing. Laws are further defined every day by our appellate court system. In fact, out of all of the new laws being defined by higher courts in Florida, criminal cases top the charts as compare to other areas of law. This means that a criminal defense lawyer must constantly keep up with the changes in state law to effectively represent their clients. If you have a question about a criminal case, contact attorney WR Moore today.
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