• Anthony Candela

Do you mind if I search your bag?

I have heard from quite a few clients in the past that the police did not give them an opportunity to agree or consent to a search and just searched. It is an all-to-common complaint and one that is difficult to prove in court because it becomes the police officer’s word and the seized contraband versus the accused. I am optimistic that police body cameras and technology may change this deficit, but until then it is incumbent on all citizens to understand and know their constitutional rights.

In America, a search conducted without a warrant (issued by a neutral and detached magistrate) based upon “probable cause” is deemed

unreasonable. Although there are limited exceptions, that type of search is unconstitutional unless the government can show that the circumstances surrounding the search falls within a few specially established and well-defined exceptions to the warrant requirement. One of the exceptions to both a warrant and a “probable cause” search is consent.

In Florida, when the prosecution asserts consent as a justification for a warrantless search, the prosecution bears the heavy burden of showing that the consent was given voluntarily and not merely acquiescence to police authority. “Acquiescence to police authority” is a legal concept that means that the person confronted with the request to search merely capitulated and agreed to the search because law enforcement coercion.

The established test to determine whether consent was voluntary (versus involuntary and, therefore, acquiescence to police authority) is for the court to consider the “totality of the circumstances.”[i] Analyzing the actions of the accused from the reasonable person standard, the trial courts are to look at three factors to determine whether the consent to search was voluntary: (1) the time and place of the encounter, (2) the number of officers present, and (3) the officers’ words and actions; a court analyzes these factors from the perspective of a reasonable person, untrained in the law, deciding whether he or she is free to end the encounter.[ii]

Many people simply do not understand that in America they have the constitutional right to terminate a citizen encounter, go about their business, and refuse to allow law enforcement to search their automobile, bags, or person. It is only when the officer has a reasonable suspicion of criminal activity can an officer detain a person; it is only when the officer has probable cause to believe that a crime is, has, or is about to occur, can the officer arrest and/or search a person. The standards of suspicion are different, and the differences are important to prosecutors, defense attorneys, and judges. On the other hand, most people are not lawyers and have no idea (nor should they) understanding the different levels of suspicion (e.g., a hunch, reasonable suspicion, or probable cause). Most people simply cannot fathom simply ignoring the officer’s request- so they stay and obey.

And let’s face it – when confronted with a law enforcement officer in the above situation – it becomes nearly impossible for the average citizen to resist the officer’s requests to search. People become scared of being arrested and believe that if they comply with the officer’s request that that will somehow inoculate them from an arrest. Please understand, if the officer believes (rightly or wrongly) that someone has committed a crime, the person will most likely be arrested. It is not up for a “street” debate; the matter should be litigated, however, in court.

Over the years, the problem with the consent analysis has become obvious - - - most citizens believe that they are required to cooperate with law enforcement. Appellate judge Casanueva (Second District), in Smith v. State, 753 So. 2d 713, 716 (Fla. 2d DCA 2000) outlined the concern:

We fear that similar situations will arise in the future, perhaps because most citizens hold it to be their duty to cooperate with law enforcement, a belief with which we join. But once engaged in the process, few citizens know the boundaries that law enforcement may not legally exceed or the means to stop conduct they may perceive to be unduly intrusive. The Supreme Court of the United States has held that police officers are not required to inform citizens of their right to refuse consent to a search. (citation omitted). Thus, ignorance of one’s rights may lead to a denial of those rights. To avoid similar occurrences and to define rules for determining “whether an invasion of privacy is justified in the interest of law enforcement,” (citation omitted) we would suggest that our supreme court consider adopting a bright line rule that requires clear verbal consent before the search of any body orifice. (footnote omitted) The rule, to insure an individual’s right to privacy, should impose a duty upon law enforcement to inform a person of the right to refuse consent as well as the concomitant right to withdraw previously given consent.

Id. In Chief Judge Altenbernd’s concurring opinion in that case, he expressed equal concern and stated:

I realize that the case law is beginning to develop distinctions based upon an officer’s rhetoric. (citation omitted). I am not entirely convinced that a reasonable person stopped by an officer believes that he is free to leave if the officer says, “May I look in your mouth?” but has a different understanding if the officer says, “Open your mouth.” Neither am I convinced that a reasonable person fully appreciates the proper scope of a search during an encounter depending upon whether the officer says “search” or “look around” or “look into.” All people, including police officers, communicate the level of their authority to control others both verbally and non-verbally. We expect, and even demand, that our police officers will be polite and courteous. They are trained to assert their authority while remaining courteous. Beginning in pre-school, citizens are taught to respect the police and to cooperate with them. As a result, a polite and courteous request to search from a uniformed officer, emerging from a police car while armed with a gun and nightstick, conveys a completely different degree of authority, for instance, than a brusk order from an ice cream vendor to buy a Good Humor bar. Given that we must examine the question of an officer’s show of authority and a citizen’s consent from the perspective of a reasonable citizen, and given that the State has the burden of proving the citizen’s consent to the search, I do not believe the State met its burden in this case.

Id., at 717.

If you or a loved one has been arrested or have any Florida criminal matter that you want reviewed, then do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 for a review of the situation. Citizens have got to understand their rights. The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author.

Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer

[i] See Schneckloth v. Bustamonte, 412 U.S. 218, 223, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)

[ii] See Hardin v. State, 18 So. 3d 1246 (Fla. 2d DCA 2009).

#FourthAmendment #consent #totalityofthecircumstances


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