Sunday, August 28, 2011

Denver criminal defense lawyer / the consent "exception"

Yesterday on the Denver criminal defense lawyer blog, I took a look at the exclusionary rule. The exclusionary rule says that if a cop does a search without a warrant and probable cause, the evidence can't be used against you in court. In that post, I mentioned that there are a lot of exceptions which mean the evidence can be used against you even if there is not a warrant and probable cause. I'm going to start with the exception that drives Denver criminal defense lawyers like me nuts: the consent exception.

Basically, the rule with consent is that if you consent to a search of your belongings, your Denver criminal defense lawyer can't come back later and suppress the evidence. This is a problem for defendants in a lot of cases, because cops are really good at getting you to consent. They'll tell you it'll go quicker if you let them have a look. They'll also imply that you don't really have a choice, they can do it the easy way or the hard way. That part is technically true, although if they do it the "hard way" you reserve your right to challenge the search later and possibly get crucial evidence thrown out of the case against you. Basically, the police will not be clear on the importance of waiving your fourth amendment rights. And make no mistake: when you consent to a search, you are waiving your fourth amendment rights.

Adding to this is a problem of basic human psychology. Many suspects think that only guilty people will invoke their rights, or refuse consent. They think if the cops hear "no," they will look more guilty, and things will go worse. However, if you've been pulled over, or stopped on the sidewalk or whatever, you already look pretty guilty in the eyes of law enforcement. Giving in to a request for a consent search isn't going to change that. It's just sacrificing one of your crucial weapons in the possible case against you down the road. Once you consent to the search, you are also telling the police that it's OK to bring anything they find into the case against you. A clear, vocal, renunciation of consent puts the burden of showing probable cause and possibly a warrant squarely on the shoulders of the prosecution. Do you really want to do the prosecutor's work for him?

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