When is Consent to a Police Search Invalid?

          In many cases in which the police want to search someone's car or home, they try to obtain the owner's verbal or written consent so that they do not have to get a search warrant from a judge or otherwise be concerned about the lawfulness of conducting a search.  But if the lawfulness of a particular search does become an issue later on when the case goes to court, the prosecutor may have to prove that the person's consent was given freely and voluntarily.  She may also have to prove that even if consent was originally given freely and voluntarily, it was not later withdrawn by the accused individual's words or actions or by the words or actions of the police.  If the prosecutor cannot prove those things, then the judge hearing the case may rule that some or all of the incriminating evidence that the police acquired is inadmissible at trial.  When that happens, a prosecutor is sometimes forced to drop the case because she does not have enough evidence to obtain a conviction.

          The lawfulness of a search following consent was at issue in the recent case of Johnson v. State of Florida.  In that particular case, Mr. Johnson was charged with possessing illegal drugs that were found on his person while being searched by a police officer by the side of the road.  After being arrested, Johnson filed a motion to suppress that incriminating evidence arguing that although his consent may have originally been given freely and voluntarily, that consent was later invalidated or effectively withdrawn when the police themselves engaged in unlawful conduct.

          Florida's First District Court of Appeal agreed with Mr. Johnson and in doing so found the following facts to be of particular significance:

•  The police officer who searched Johnson first asked him and the driver if there was anything illegal in the car and then asked if they would consent to a search of their persons;
• Both Johnson and the driver consented to being searched, but before he was searched, Johnson opened his car door in order to get out;
• When he did that, the officer told him "to sit tight";
• By then, two other officers had arrived and were standing behind car in which Johnson was a passenger;
• After searching the driver, one of the officers told Johnson to get out of the car so that he could search him;
• That officer found a small bag of cocaine in Johnson's front coat pocket and marijuana in his sock.

         The appellate court ruled that although Johnson's consent was originally given freely and voluntarily, it was effectively withdrawn by the police themselves when he was ordered to "sit tight" because the officer who gave that order had no lawful basis for detaining him at that particular point in time.  As the Johnson Court aptly noted, "it seems logical that an illegal detention would taint everything which follows it, including the continuing validity of consent given prior to the illegal detention."

          Johnson's case is significant because of the court's well-reasoned conclusion that his consent was invalidated not by his own words or actions but rather by the unlawful action of the police in ordering him to remain in the car when there was no legal justification for their doing so.