Consent searches can open cans of worms says Fairfax criminal lawyer

Consent searches not only do not serve Virginia criminal suspects’ interests, but invite huge headaches that could have been avoided or minimized by simply having declined a police search. As a Fairfax criminal lawyer, I remind you that you have a Fourth Amendment Constitutional right to refuse searches. When you waive that right, you may have kissed goodbye your only hope of winning your criminal case. The risk exists for some police officers to claim that they received search consent when they did not, which is among the reason why it is so important to have videotaping and audiorecording of police interactions with suspects. Police video footage with Christopher Carter at once shows an eventual drug and firearm criminal defendant who fails to assert his Fifth Amendment Constitutional right to decline speaking with police and fails to assert his right to decline searches other than that Carter only agreed to be checked for weapons. Carter v. Virginia, ___ Va. App. ___ (Dec. 28. 2023). The the law enforcement officer (LEO) footage shows in startling detail Carter’s repeated waiver of his right to remain silent, but also in the end got Carter a reversed conviction, where his three-judge Virginia Court of Appeals panel agreed that police lacked probable cause to search his car where the contraband was found, and also agreed that Carter search waiver only extended to searching him for weapons, and not for removing everything from his pockets.

Do police have to tell me my right to decline consent searches, and, before being arrested, to remain silent with the police and to have the presence of a lawyer before answering LEO questions?

The Virginia appellate courts and the Supreme Court do not require police to tell you your right to decline searches; they seek consent searches all the time. Moreover, before you are arrested or otherwise detained beyond initially, the courts and law do not police to tell you of you right to remain silent with them nor to have a lawyer present during police questioning. Christopher Carter’s police officers did not so advise him. Perhaps some people do not think they have such rights before police tell them of such rights; that notion is wrong. With Carter, police seemed clearly to have profiled or otherwise targeted him when all they observed about his behavior was driving five miles an hour over the speed limit (and how many people do not drive at least five mile per hour over the speed limit) near a well known motel known for being frequented by drug dealers and users, and turning into the parking lot of another motel within around a mile away.

How much more frequently do police investigate and arrest African American males?

This Carter consent searches opinion does not mention his ethnicity, but his online General District Court docket lists his race as black. Whether or not the police stopped, investigated and arrested Carter partly out of considering his race, when police stop black men for no reasons other than what is stated above, that only helps foster skepticism and/or mistrust by many members of the public in police who behave in such a way. With police being drawn from the general public, and the general public including plenty of people who act on racist views, that is enough reason for me to believe that racial profiling by police runs too rampant, and that is a reason why I would feel very uncomfortable — to say the least — being  a prosecutor. I have never prosecuted and never will.’

Will I win on appeal over incorrect legal rulings by my Virginia criminal trial judge?

Virginia has two different procedures for appealing a trial loss, including with alleged consent searches. Appealing a misdemeanor conviction from a Virginia District Court to Circuit Court involves an entirely new trial by jury (unless the defense and assistant commonwealth’s attorney / prosecutor waive a jury)  Appealing a conviction from a Virginia Circuit Court (where felony cases and misdemeanor appeals proceed to trial) to the Court of Appeals involves determining whether the judge made any incorrect legal rulings, the extent to which a remedy will be provided for any incorrect judicial ruling, and what the remedy will be. Do not hang your hat on getting appellate relief from your Virginia criminal trial conviction. Virginia appellate court decisions more often than not affirm convictions, either finding no judicial error at the trial level, harmless error, or other error that does not qualify for relief. Carter, on the other hand, suffered such a blatant violation of his Fourth Amendment search rights that not only does it look inevitable that he obtained the appellate relief that he won (in the form of what amounts to a permanent reversal of his conviction), but it is mind boggling that Carter’s trial judge ruled that the search that yielded the contraband leading to his arrest was lawfully seized. A review of Carter’s trial judge’s biography shows that he is a retired judge who sat for over a quarter century as a trial judge, so therefore handled many search and seizure matters.

Does the law allow a search for nothing more than driving near a motel with significant drug activity and only slightly over the speed limit?

If a greater percentage of the public is going to have more faith in the police in general, police will not behave in the oppressive, civil liberties-violating fishing trip in which multiple police engaged against Carter. The following paragraph from Carter — with my commentary in brackets — helps encapsulate the abominable police behavior in his prosecution, which behavior the prosecutor and appellate government lawyer (who included trying to argue that the unlawful emptying of Carter’s pockets not revealing any smoking material supported arresting him for possession with intent to distribute the lawful amounts of marijuana in plain view in his car) should have remedied respectively by not prosecuting the case and by asking for appellate relief for the defense, but instead Carter had to wait for the Court of Appeals to remedy his unlawful search and conviction:

“While Officer Murphy was again trying to get a narcotics dog [in other words, unconstitutionally elongating a minor traffic stop [traffic stops may not be elongated without an independent Fourth Amendment basis for doing so (Rodriguez v. U.S., 575 U.S. 348 (2015)], his police supervisor drove into the motel parking lot and parked. His supervisor advised him that he had gone ‘too far unless you get us something major.’ [Hopefully the supervisor meant to not search without having more evidence than the police already had obtained.] Then Officer Murphy turned off his body-worn camera (‘bodycam’) and conversed privately with his supervisor ‘about the scope of the stop and what [he] had found thus far.’ [What are police hiding when they turn off their videotaping and audiotaping devices? Did the written procedures applying to this police department allow turning off the officer’s bodycam at this point?] After about six minutes, Officer Murphy turned his bodycam back on.” Carter. 

Is your Virginia criminal lawyer unaccepting of such blatant police assaults on people’s civil liberties?

One of the very reasons that I became a criminal defense lawyer was the rampant Fourth Amendment and other civil liberties violations taking place in the name of the drug wars. My unwillingness to accept police and prosecutorial abuse of people’s civil liberties energizes me to not accept police at their word (including their claiming consent searches), but to ferret for the gold that will help win for my clients in court.

Fairfax criminal lawyer Jonathan Katz does not stand for police nor prosecutorial abuse of your Constitutional rights. That stand is only meaningful when backed up by ability and success in criminal defense, which Jon Katz backs up with his years of successfully defending thousands of criminal defendants and successfully taking hundreds of criminal and DUI cases to trial. Call 703-383-1100 to schedule your free in-person initial confidential consultation with Jon about your court-pending prosecution.