New Caselaw: Your Can Still Withdraw Consent to a Search Even if At First You First Consented
You’re pulled over in Miami or Fort Lauderdale, and the cop asks for consent to search your car. He’s not really telling you if you’re free to go, and you unfortunately agree to the search. You thought he meant a quick search up front, but now he’s wants you to pop the trunk. Is it too late to change your mind?
Probably not, you can change your mind about consenting to a police search of your vehicle or person according to a recent case out of the Fourth Circuit. Even if you initially agreed to a search—and you should not ever agree to one—you can withdraw consent. In U.S. v. Patiutka, the driver was pulled over for having tinted windows that appeared too dark and for failure to maintain his lane. He had a fake ID and appeared to consent to a search. During the initial search, the police found a credit card reader and some unopened iPads in a suitcase – at which point the driver said “no” and “close the car.” The cops continued their search because they believed he was involved with criminal activity.
It looked like they were right. They found a credit card embosser, a credit card re-encoder, and many blank credit cards. Later at the police station, the driver made several incriminating statements. Surely the driver would be convicted and imprisoned.
But the district court and appellate court agreed that the driver’s lawyer’s motion to suppress the evidence was justified. At the time the driver withdrew consent, there was not yet probable cause to arrest the driver. There are plenty of legitimate reasons you could have a credit card reader and iPads. The court held that the police may have had a reasonable suspicion to believe criminal activity was afoot – and depending on the answers they got from the driver, that may have then become probable cause justifying a search. But the cops didn’t do that – and at the court hearing, the evidence was suppressed and thus the case was dismissed.
What should you take away from this case?
The Cops Can’t Violate Your Constitutional Rights, Which Protect You from Unreasonable Searches and Seizures.
The police cannot conduct an illegal search and then attempt to justify the search by pointing to what they found. The ends do not justify the means when it comes to your constitutional rights under the fourth amendment of the United States Constitution. You have a constitutional right not to be subjected to unreasonable searches and seizures. The cops here may not have set out to violate the driver’s rights, but they did – and this happens all the time.
If you’ve been arrested, it’s critical to examine the circumstances of your arrest. An experienced, aggressive criminal defense attorney will, and he may conclude that the police officers in your case should not have continued their search.
If You Agree to a Search, Withdraw Consent as Quickly and as Loudly as You Can.
You shouldn’t ever consent to a search, there is no logical reason to do so. You are not required to allow a police officer to search you unless the officer has a search warrant or places you under arrest based on probable cause that you committed a crime.
However, if you do initially consent, you can and should withdraw it. Florida courts recognize that “consent is fleeting. … Once consent is given, it can be withdrawn at any time for any reason.” If you don’t withdraw consent, then the police will probably be able to use anything they find against you – no matter how long they take in searching your vehicle. In another case in Florida, the cops spent two or three hours searching a couple’s motor home before they ran across some marijuana. But the court held it was a legitimate arrest because the couple never withdrew consent.
If you withdraw consent, do it loudly and unequivocally. Sure, you may act in such a way that the police and court might agree you withdrew consent. But don’t leave any room for doubt. Politely, but loudly and unequivocally, inform the police that you do not consent to a search.
Remember Your Right to Remain Silent.
As to that Patiutka case we talked about before? The driver made several mistakes there. One was that he made several incriminating statements while he was in custody. You have the right to remain silent and ask for an attorney, use it. He was very lucky to have a criminal defense lawyer successfully prepared and argued the motion to suppress evidence in court for him.
Also, remember that the court held that, if the police asked more questions after finding the reader and iPads, their reasonable suspicion could have become probable cause justifying the search. That’s another reason you must politely, but clearly, exercise your Fifth Amendment right to remain silent and your sixth amendment right to ask for a lawyer. Police officers are trained to get people to incriminate themselves. The only way to win that game with them is not to play.
Don’t make it harder for your Miami criminal defense attorney to fight to have your charges reduced or dismissed. Make sure you know your Miranda rights – and use them!
Get an Experienced Criminal Defense Lawyer
Here’s one other thing to remember. Patiutka felt he was caught red-handed. And he made incriminating statements to the police once he was in custody. This is a case where he or an inexperienced lawyer, might have thought it was all over. That he might as well take the first plea bargain that came along.
But an experienced and knowledgeable Miami criminal defense lawyer knows to examine every aspect of your arrest. If he’s thorough and the police officers made the kind of common mistake that you see here, then a good Florida criminal lawyer will find it. That means the Defendant could have criminal charges reduced or even dismissed outright by just picking an experienced criminal lawyer.
If you’re arrested after a search in Miami-Dade, Broward, Palm Beach, or Monroe County, then get a good criminal defense lawyer. Click on this link for some of the most important questions you should ask a criminal defense attorney to ensure the best possible legal defense of your rights and your freedom.
Increase your knowledge! If you want to know more about how to resolve the problems you face when charged with a criminal offense in Florida, then you can follow Miami Criminal Attorney Albert M. Quirantes on Facebook, Twitter, or Google+.
If you have any questions about this or any other criminal accusation, call Miami Criminal Defense Lawyer Albert Quirantes at: 305-644-1800 or visit our homepage www.CriminalDefendant.com for a direct link to the office or a text message or a map and directions to our office.