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What to do When Asked by Police to Consent to a Search

1/24/2012

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You are in your home and hear a knock at the door. You are surprised to find a group of police officers, one of whom asks if they could come in and look around.  You ask if they have a warrant and the officer informs you that they do not have a warrant but would like to have a look around none the less.

In a slightly different situation, you are driving your car when you see flashing lights approaching. You pull to the side of the road to discover that the flashing lights have pulled right behind you. After asking for your license and registration and informing you of the motor vehicle infraction for which you were pulled over, the police officer asks to search the vehicle. You inquire as to whether he has a warrant. The officer notes that he does not have a warrant and then questions whether there is anything in the car you do not want the officer to find.

These are two scenarios where a person is confronted with a police officer’s request to conduct a consensual search. A person is often struck by conflicting feelings. On the one hand, the police may not have any right or legal basis to conduct a search. Conversely, a person may feel that refusing may give the appearance that he or she has something to hide.

You might initially question what prompted the officer to request the search. However, in New York and New Jersey, the general rule is that an officer is permitted to seek consent to search with absolutely no suspicion as to criminal activity. Only in New Jersey, in the case of a traffic stop, must an officer have a reasonable suspicion of criminal activity[i]. New Jersey Courts fear that a driver may feel compelled to consent when he or she is stranded on a highway after a motor vehicle stop.[ii]

Once you have been asked to consent to a search, it is crucial that you know that you have the right to say no. In fact, Police will often advise a suspect that they have the right to refuse. In New Jersey, an officer is required to inform a suspect that they have the right to refuse to be searched and if an officer does not so inform a suspect, then the consent will be deemed involuntary and the search declared invalid.[iii] Unfortunately, in New York, an officer is not required to inform a suspect that he or she has the right to refuse consent. However, even in New York, failure to so inform is a factor to be considered in determining whether the consent was voluntary.[iv]

Should you decide to offer consent, it is crucial to understand that consent to search is not a universal surrendering of all rights to privacy. A suspect’s consent to search limits a police search to the area that objectively and reasonably falls within the suspect’s scope of consent.[v] If you consent to a search of your garage, then the police cannot search your bedroom.  If you permit the police to enter in order to look for a stolen television, they cannot search inside containers too small to contain such an object.

Now that you understand the underpinnings of a consensual search, what should you do in the scenarios described above? Do not consent to a search. If an officer has the authority to search a location or if there is an emergency at hand, then the officer will perform the search. If the officer has a warrant or the necessary probable cause to justify the search, a person’s refusal will only result in the officer’s forcibly entry in order search the area. When police ask your consent to search, it most likely means that they have not obtained a warrant to perform the search. Therefore, if the police ask for consent to search, you should refuse until they get a warrant. Nothing good will come of allowing police to search through you home and possessions. They are not looking to vindicate you; rather, they are looking for evidence to support a case against you.

That being said, each case is unique and there are situations where one could benefit from consenting to a search. Therefore, one should consult a Criminal Defense Attorney when confronted with the decision of whether to acquiesce to a police officer’s request for consent to search. Contact a Criminal Defense Attorney to learn about your rights.

[i] State v. Carty, 170 N.J. 632, 650 (N.J. 2002). [ii] State v. Domicz, 188 N.J. 285, 309-310 (N.J. 2006). [iii] State v. Johnson, 68 N.J. 349, 354 (N.J. 1975). [iv] People v. Gonzalez, 39 N.Y.2d 122, 130 (N.Y. 1976). [v] Florida v. Jimeno, 500 U.S. 248, 251 (U.S. 1991); State v. Hampton, 333 N.J. Super. 19, 29 (App.Div. 2000).

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False Arrest Claims Allow Victims to be Compensated for Damages.

1/17/2012

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A Defendant’s attorney finishes his plea to the Court and demonstrates that there is no evidence to support the arrest or charges made against his client.  The Judge reviews the evidence and dismisses all charges against the Defendant.  Naturally, a person is excited to learn that the case has been dismissed.  However, this joyous feeling is short lived.  Just moments after the words “case dismissed” have left the mouth of the Judge, a person will remember the anxiety and fear that took over his or her life from the moment of the arrest.

A common misconception among those who have been arrested is that once a case against them is dismissed, they have been vindicated and made completely whole once again. In reality, the traumatic effects of an arrest can remain with a person for the rest of his or her lifetime. The ill effects are even harsher when the original arrest was wrongful or frivolous.  When there was no probable cause to support the original arrest, a person has been the victim of a False Arrest. 

Thankfully, the law provides such a person with a mechanism to recover for the loss and hardships suffered as a result of the arrest. This action is commonly referred to as a False Arrest Claim. By filing a False Arrest claim, the victim can sue the Police, City and/or any other entity which caused the arrest to be made.

A victim of a False Arrest can seek to collect for the following: (1) Time in Custody/ Jail (known as false imprisonment); (2) Physical Injuries suffered; (3) Violation of Civil Rights (when arrest is based on race, color or creed); (4) Length of prosecution; (5) Number of required court appearances; (6) Loss of Employment; (7) Loss of Earnings; and (8) Damage to Reputation.

Although a False Arrest claim allows the victim to be compensated, there is a small window of time in which the claim must be filed.  A claim can be filed against any party who was involved in the arrest.  The Police are sued as employees of the City.  The law provides that any claim against the City must be made within a short amount of time. In both New York and New Jersey, a claim against a city must be filed within 90 days. In New York, the law suit must be started within a year and 90 days of the arrest and in New Jersey, this period is two years.

In sum, the law affords victims of false arrests an avenue to recover for the various damages. However, victims must act expeditiously in filing a claim in order to preserve their right to file a suit against a municipality.  If you feel you have suffered as a result of a false arrest, it is important that you contact a False Arrest Attorney in order to learn how to begin your road to compensation.

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Know Your Rights upon being Arrested

1/11/2012

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Often times, a person's first contact with the legal justice system begins with an arrest. The unexpected nature of an arrest can leave a person unprepared to deal with the complex legal system. It is crucial that you understand the rights that attach as soon as an arrest is effectuated.

Often, an arrest begins with a phone call from a precinct or police headquarters. In the most common scenario, a police officer calls and asks a person to come down to the station to be asked a few questions. Don’t be fooled by this seemingly innocent request. If the person goes to the precinct, he or she will most likely be arrested.

Instead, the person should take this opportunity to contact a Criminal Defense Attorney. If there is a warrant for the person’s arrest, the attorney can talk to the police and inquire as to the basis for the warrant and even negotiate a convenient time to surrender.

Once a person is taken into police custody and interrogated, the police are obligated to inform him or her of certain rights, known as Miranda rights.  Miranda v Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). These constitutional rights stem from the protections guaranteed by the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel. The police must inform the suspect that he or she has:

(1) The right to remain silent; and

(2) The right to an attorney.  If the suspect cannot afford an attorney, one will be provided.

Notice that there is no right to a phone call.  Despite the portrayals on TV, there is no right to make a phone call. Therefore, it is even more crucial to know your rights.  Now that you know your rights, let’s take a look at how to a person should effectively assert these rights once arrested.

First, ask for an attorney! Whether or not you have retained an attorney, asking for an attorney will cease all questioning until your attorney arrives or until one is eventually provided (likely at arraignment).

Second, do not make any statements to the police. Aside from your name address and date of birth, you should not tell the police anything because any statement will be used against you.  Police will often try and convince you to talk by offering to “help you out” if you tell them “what happened.” Experience has shown that this is a ploy to extract an incriminating statement. By keeping quiet until you have the assistance of an attorney, you will help you set your case in the right direction and help ensure the most beneficial final resolution.

To learn more about your rights, contact one of our Criminal Defense Attorneys. How you respond in the moments after your arrest sets the tone for the remainder of your case.

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    Fuld Disclosure
    A Legal Blog


    About the Author

    Prior to joining the office, Judah Fuld served as the Law Clerk to the Honorable David H. Ironson, Superior Court of New Jersey, Criminal Division. Judah first appeared in court as a member of the Fordham Criminal Defense Clinic and has since expanded his work to various areas of criminal and civil law. 

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