DOES CONSENT MATTER IF THE STOP IS ILLEGAL?
I often advise clients never to give consent to police to search their property or person (frisk) following a traffic stop in your car (vehicle search) or while you’re walking down the street (pedestrian stop). Consent, in most situations, will eliminate all of your constitutional rights, and specifically those under the 4th and 14th Amendments to the United States Constitution as well as Article 1 of the Pennsylvania Constitution and Article 1, Paragraph 7 to the New Jersey Constitution.
Consent based on an illegal stop
If you’re facing criminal charges based on some type of contraband (drugs or guns), and those items were found as a result of a police search, your criminal defense lawyer must evaluate the legality of that search. Even if you gave consent for the search, you should never assume that you don’t have a case for a potential illegal search and seizure issue. As I have stated in the past, a motion to suppress based on an illegal search and seizure is often the defense lawyer’s strongest tool or argument, especially where the issue of possession is not in question. I encourage you to read my article on Actual vs. Constructive Possession to understand that police do not need to find the contraband (drugs, narcotics, hand gun) on your person for you to be convicted of a crime like Possession with Intent to Deliver (PWID), Possession of an illegal Firearm—Violation of Uniform Firearms Act or conspiracy related to it.
Drug Profiling & Consent Searches
While giving consent will obviously make a pre-trial motion much more difficult, consent isn’t valid if police have violated your rights prior to securing that consent. If, for example, police have stopped (seized) you for investigative purposes or arrested you without sufficient probable cause, the consent that they later obtained is invalid. If, for example, police stop you simply because you fit a “drug dealer profile”, a Pennsylvania court will more than likely find that this stop wasn’t based on sufficient reasonable suspicion, so even if you give consent a court will find that the consent isn’t valid.
Random Police stops are illegal
Keep in mind that police in Pennsylvania can’t randomly stop persons and vehicles without reasonable suspicion. Anything done after that illegal stop is therefore illegal, even if it involved consent. Further, even if police have reasonable suspicion or probable cause to stop a person or a vehicle, they cannot lengthen that detention if justification for that stop no longer exists. There is a substantial amount of Pennsylvania case law on these topics.
Consent given based on deception or police tricks
Finally, consent obtained under false pretenses or by deception could be held to be invalid. If, for example, police do not tell a person that he is the target of inform the subject that they are there for some other purpose or reason the court could find the search illegal and thus make the evidence inadmissible.