Pubdate: Mon, 24 Jun 2002 Source: Parkersburg News, The (WV) Copyright: 2002, The Parkersburg News Contact: http://www.newsandsentinel.com/ Details: http://www.mapinc.org/media/1648 Author: Roger Adkins RULING: POLICE MUST RECEIVE VERBAL CONSENT BEFORE SEARCH A officer asking to search a person's vehicle, house or person must have clear verbal consent before the search is valid, but according to a recent ruling by the U.S. Supreme Court that upheld earlier rulings, officers aren't required to advise people of their right to deny permission for a search. The U.S. Supreme Court recently ruled police can question passengers on buses and trains and search for evidence without informing them they can refuse, The Associated Press reported. The ruling stemmed from a case where police in Tallahassee, Fla., found drugs on two Greyhound bus passengers after they gave officers permission to search them. One later filed a complaint, saying he didn't know he could refuse to consent to the search and the officers should have told him. The men were wearing heavy clothes on a warm day, which prompted suspicion, The AP reported. The AP story didn't say why police were on the bus initially. Part of consent consists of an understanding a person being searched has the right to deny an officer permission to search, said Parkersburg police Chief Robert Newell. Officers aren't required to tell the person they wish to search they can refuse, but a judge may consider that when deciding if the search was valid, Newell said. "The consent has to be clear and verbal and prior to this (consent), they did have to have an understanding that they didn't have to give that permission," Newell said. "There's a warning you can give them on a consent to search, and it basically says they're requesting permission to search. It goes on to say 'you can refuse to give me permission and require me to get a search warrant.' " That warning is entirely optional, Newell said, adding "but you're going to have to be able to convince the judge that these people understood that they didn't have to give consent." All this is assuming the officer had probable cause to ask for consent to search in the first place, Newell said. An example of probable cause for an initial traffic stop would be a broken taillight. An example of probable cause to ask for a search would be the scent of marijuana emanating from a vehicle. The Supreme Court has ruled similarly on this issue in the past, Newell said. Newell read from a previous Supreme Court ruling that states: "Law enforcement officers seeking to obtain valid consent to search from a person not in custody need not give any warning or otherwise ensure that the person is aware of their right to refuse to consent." Any person who is asked to be searched has the protected right to refuse and require the officer to obtain a warrant, but if the officer has to tell the person they can refuse, it's almost like saying "don't let me search you," Newell said. "When you ask for consent, it should be understood by the person you're asking that they don't have to, or you wouldn't be asking to begin with," Newell said. "To go on and say 'you can make me go get a search warrant' is almost like saying 'don't give me consent,' " Newell said. Newell said if an officer advises a person they can refuse to grant permission for a search and consent is granted anyway, it helps prove to a judge the consent was voluntary. "You just have to show it's voluntary," he said. If a citizen isn't aware of Fourth Amendment rights and they consent to a search not knowing they can refuse, their consent can still be proven to be voluntary, Newell said. "That's the argument, always. The argument always is 'the man said 'can I search' and I was afraid to say no,' " Newell said. That argument is not often won, he said. "The only thing the officer has to show is, first, he had some reason to ask, because you can't ask just for the heck of it ... and, second, you just have to show you didn't coerce him." Wood County Magistrate Emily Bradley said she has had cases in the past in which she has ruled evidence was invalid because of searches in which no consent was obtained. Just because a search is considered invalid, doesn't mean the case is closed, Bradley said. "If the search is bad, only the fruits of a search can be thrown out," Bradley said, adding the prosecution still may have a case. Bradley and Newell said every circumstance is different. Other points to remember when officers ask for permission to search: - - Officers can confiscate contraband or paraphernalia that is in "plain view" when observed through the window of a car or from the door of a home, assuming the officer has probable cause to make a traffic stop or knock on a person's door. They can only confiscate what they can see and immediately identify. Items found in plain view do not give the officer probable cause to further search the vehicle or house unless the officer first procures a warrant or consent. - - The smell of drugs or alcohol is probable cause to ask for a search or to obtain a search warrant. - - Officers don't need permission to use a drug dog to "sniff" around the outside of a vehicle. If the dog "hits" on something inside, officers can ask permission to search and they have probable cause to obtain a warrant. - - A warrant can be obtained only when there is reasonable suspicion that evidence of a crime will be found inside the property searched. - - Officers have a right to frisk someone they believe is armed, but the officer cannot search the person's pockets without consent, Newell said. - - Officers can't assume silence is a consent, Newell said. "It has to be clear," he said. - - Officers can't coerce a valid consent through threats. "You can't say 'if you don't give me consent to search, it's going to be more trouble for you down the road,' " Newell said. - - Once a person is placed under arrest, they are subject to any search of their person, even a strip search. - --- MAP posted-by: Beth