“When Is Consent Not Really Consent?”

Often times people are arrested after they give consent to be searched by law enforcement, and drugs, paraphernalia, or other tangible evidence turns up. In many cases, the “consent” that person gave is a product of police intimidation or coercion. These situations typically have two possible outcomes: the Defendant is found guilty because he doesn’t know how to defend his Constitutional rights, or the Defendant files a motion to suppress and the evidence recovered by police is inadmissible in Court. We recently sat down to speak with Tampa criminal defense attorney Barry Taracks and asked “when is consent not really consent?”

“The Fourth Amendment to the US Constitution requires that consent not be coerced, by explicit or implicit means, or given through means of threat or force.” Mr. Taracks began. “Consent that is the product of intimidation is not actually consent and does not constitute a waiver of your rights. We often see this in situations where clients have been intimidated or scared into waiving their rights. After all, the average person avoids contact with law enforcement, but when it happens it can be pretty scary.”

“When determining the voluntariness of an alleged ‘consent’ to a search, the court has to look at all surrounding circumstances to determine whether or not a so called ‘reasonable person’ would have felt that he or she was free to decline a request or end communication with law enforcement all together.” Mr. Taracks said that after 25 years in the criminal law business, he has seen all sorts of intimidation or coercion by police to get people to give consent to searches they otherwise “wouldn’t give in a million years.”

The Court should also look to the “possibly vulnerable subjective state of the person who consents.” Mr. Tracks said. Many factors may give rise to the notion that consent was coerced. “For example, did law enforcement officials make it clear to you that you were suspect of a criminal investigation?” Mr. Taracks says that this is one way the police intimidate citizens into consenting to these searches.

“A second factor that may give rise to the notion that consent was coerced is the number of officers present. Were there two, three, or even more officers at the scene? Who would really feel that he or she could say no when surrounded by all those law enforcement agents?”

A third factor that may be considered in this analysis is the length of the detention of the defendant. “Were you detained for an hour while the police threatened to call in a warrant or obtain backup? Often times fatigue can cause a person to cave and give his or her consent.”

Fourth is the vulnerable subjective state of the defendant when he or she consents. “If someone is under extreme duress, he isn’t thinking clearly. Sometimes police will use tactics to frighten people into consenting. For example, there is a case out there where the police showed up late at night and told the defendant his car had been broken into, when in reality his car was totally fine. It’s this sort of behavior that can lead someone to consent to a search when he really wants to tell the police to leave him alone.”

“It’s important to remember that these factors are not exclusive. There are a million different ways the police could coerce you into giving consent to a search in violation of your Constitutional rights. The bottom line is this: your consent needs to be actual and willing and not the product of police intimidation or trickery. If you feel that you were searched after giving ‘consent’ that wasn’t really consent at all, you should call an experienced Tampa criminal defense lawyer today.”

With over 20 years in business, the law firm of Taracks & Associates has the knowledge and tools necessary to fight your case. “We have handled thousands of motions to suppress” Mr. Taracks says. “The lawyers at Taracks & Associates know the law and the system and will fight for your rights. If you were tricked into giving consent, call a lawyer at our firm today. Remember, a consultation with one of our experienced attorneys is always free.”

If you were arrested after consenting to a search under fear or intimidation you should call a lawyer today. The lawyers at Taracks & Associates are available 24 hours a day at 813-281-2897. We have the knowledge and tools necessary to fight the State’s case against you. Taracks & Associates – The Advocate For You.

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