A cop needs probable cause to say s/he will search a criminal suspect or the suspect’s property. If the suspect responds by consenting to a search, handing over contraband or telling where the contraband will be found, the Defendant may still challenge whether the police officer had Fourth Amendment probable cause to search at the time the cop said s/he would search. Bumper v. North Carolina, 391 U.S. 543 (1968); Hunt v. Virginia, 41 Va.App. 404 (2003). As a Virginia criminal lawyer, I know that winning contraband charges so often lies in obtaining suppression of the contraband evidence at trial.

In reaching the above analysis, Hunt says:

“We recognize that the essence of good police work may involve the efforts of an officer, who has effected a Terry stop or non-custodial arrest of an individual, to attempt lawfully to obtain information about any other criminal enterprise in which he suspects that individual may be engaged. See, e.g., Dickerson v. Commonwealth, 35 Va. App. 172, 181–82, 543 S.E.2d 623, 628 (2001) (holding that where officer lawfully stopped driver for suspected traffic offense and then told him he was free to go, subsequent encounter in which officer asked if driver had anything in his car officer ‘”should know about’ ” was consensual and driver’s statement that he had drugs in his car was admissible). However, as the United States Supreme Court has made clear on more than one occasion, “ ‘”[the police] may [not] seek to verify [mere] suspicions by means that approach the conditions of [a full custodial] arrest.”’”

As Hunt footnotes:

“Analytically similar [to the above scenario] is the situation in which a police officer bases his right to search on an individual’s purported consent when that consent is given only after the officer falsely asserts a claim of right to conduct such a search. See Bumper v. North Carolina, 391 U.S. 543, 549–50. (1968). The Commonwealth’s ‘burden [of proving the voluntariness of a particular consent] cannot be discharged by showing no more than acquiescence to a claim of lawful authority.’ Id. at 548–40, 88 S.Ct. at 1792. Absent exceptional circumstances, a consent to search given only after an officer falsely asserts a claim of right to conduct such a search is involuntary. 3 LaFave, supra, § 8.2(a), at 639–40; see Jean–Laurent v. Commonwealth, 34 Va.App. 74, 81, 538 S.E.2d 316, 319 (2000) (where owner of bag opened bag for officer after officer (a) unlawfully seized it, (b) asked owner whether it contained contraband, (c) received response that bag contained knife, and (d) stated that ‘she needed to see [knife],’ Commonwealth showed “ ‘mere submission to a claim of lawful authority’ ” rather than consent to search that was “ ‘freely and voluntarily given,’ ” and denial of motion to suppress was error (quoting Royer, 460 U.S. at 497, 103 S.Ct. at 1324)); see also State v. Allen, 188 Mont. 135, 612 P.2d 199, 205 (1980) (holding defendant did not voluntarily consent to search where he ‘vehemently protested the search’ and ‘helped’ the officers ‘only after [they] indicated they were going to search anyway’).”

Consequently, a criminal defendant does not automatically lose the opportunity to raise a Fourth Amendment challenge to a search, by consenting to a search or revealing the location of contraband, where the consent is the result of the police saying they are going to search, when the police have no probable cause to engage in the search.

Virginia criminal lawyer Jon Katz has successfully defended thousands of clients since 1991, and regularly presents Fourth Amendment arguments to the courts. To discuss your case confidentially with Jon Katz, please call his staff at 703-383-1100.