Rules for a Consent Search

Your Sacramento criminal defense attorney will tell you that based on what police say, consent is readily given by individuals to search their apartments, vehicles, and bags. Because a defendant waives his or her Fourth Amendment rights when giving consent, the police are absolved from having to prove they have grounds for a search.

A defendant may waive Fourth Amendment rights unintentionally or without knowing that he or she has a right to withhold consent. Even so, your Sacramento criminal defense attorney will advise you that the burden lies with the prosecution to prove the defendant actually waived his or her rights in the totality of the circumstances.

Some of the circumstances identified as relevant by the courts are as follows:

• The attitude exhibited by the defendant regarding the likelihood that contraband may be discovered.
• The type of questioning that may be involved and the amount of time detention may last, as well as possible police coercion and physical punishment.
• The defendant’s awareness of his or her constitutional right to deny consent.
• The education, intelligence, age and language ability of the defendant.
• The defendant’s level of cooperation with the police.

Consent is invalidated if the police falsely represent the existence of a warrant. However, the courts consider consent to be voluntary if the defendant grants it when the police say they will obtain a warrant if he or she denies consent.

Your Sacramento criminal defense attorney will want you to be aware that third parties may give consent for a search of property or premises that pertains to the defendant as long as they hold some authority over the property and the defendant is absent. The consent is no longer valid if the defendant is present and specifically denies consent.

If you have been charged with a criminal offense and would like to speak with a Sacramento criminal defense attorney about your case, please contact Param Pabla by calling (916) 285-7900.