NJ Consent Search Without Warrant

Search Without a Warrant Based on Consent

Unfortunately, it has become all too common for some police officers to request “consent” to search a house or a car. When a driver, home, or apartment owner is confronted with such a situation, they are often unaware that they have every right to refuse a consent search since they are constitutionally protected against an unwarranted search or seizure. Intimidation can play a role here but the important thing to know is that the NJ law provides many protections against improper consent searches.

New Jersey Consent Search Law

When a person provides police with a valid consent for a search his property, he is waiving his constitutional right to privacy protection with respect to that property. This waiver will only be held valid if it is knowingly and voluntarily given. This standard requires that a consenting party have “knowledge” that he or she possessed a right to refuse the demand for consent. The prosecutor will usual attempt to establish this element through: (1) a signed consent to search form that acknowledges a right of refusal; (2) an audio or videotape corroborating a knowledgeable waiver; or (3) direct testimony from an officer regarding the defendant’s acknowledgement of this right prior to consent. As to requirement of voluntariness, factors to be considered include whether the accused was already under arrest, whether the police misrepresented the existence of a search warrant, and how many times consent was requested. Where a voluntary waiver is lacking, the results of an ensuing search will be set aside upon the filing of a Motion to Suppress . It must also be kept in mind that even where a consent is knowingly and voluntarily provided, evidence may nevertheless be excluded as improperly obtained where the encounter with the police was improper, such as where a valid traffic stop or some other reason for the confrontation is lacking.

Additional Consideration in Motor Vehicle Stops: the NJ Supreme Court decision in State v. Carty requires that an officer possess reasonable and articulable suspicion that evidence of a crime or contraband could be found in the car before a request for consent can be made.

Scope of a Consent Search

Consent authorizes the police to look anywhere the owner permits. A property owner or motorist may also attach conditions or limit the extent of a consent search. The authority to conduct a search by consent may also be withdrawn at any time. If the police find drugs, weapons or other evidence before withdrawal of consent, they may nevertheless continue a search if they possess independent probably cause to continue based on what has already been uncovered.

Evidence Obtained as a Result of an Improper Search (“Fruit of the Poisonous Tree”)

If consent has been obtained without the proper basis as outlined herein, then an ensuing Search of a House or  Car Search is invalid, along with any evidence seized during the course thereof. Additionally, where the reason for the encounter giving rise to the request for consent is invalid, for example, an improper motor vehicle stop or traffic violation, then a valid consent does nothing to allow the police to search the automobile; the police never should have made the stop in the first place.

If you were requested to sign a consent or otherwise agree to a search your car, home or some other form of property, you need to know whether this demand by the police was constitutional.

Every lawyer at our defense firm, the Pagliara Law Group possesses considerable knowledge regarding use of “consent” by police to at avoid the Warrant Requirement and is ready to provide the assistance you deserve. 

Key New Jersey Cases to Reference on Consent Searches:

• State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975)(Knowledge of Right to Object is a Necessary Element for a Consent Search to be Voluntary)
• State v. Douglas, 204 N.J. Super. 265, 498 A.2d 364 (App. Div. 1985)(Third Party such as Roommate may provide Consent under Certain Circumstances)
• State v. Allen, 254 N.J. Super. 62, 603 A.2d 71 (App. Div. 1992)(Consent to Search Car does not include bag to which Operator Denies Interest)
• State v. Younger, 305 N.J. Super. 250, 702 A.2d 477 (App. Div. 1997)(Consent to Search does not Extend to Small purse where contraband could not be by virtue of size)
• State v. Leslie, 338 N.J. Super. 269, 768 A.2d 818 (App. Div. 2001)(Consent to Search Vehicle did not include Trunk)
• State v. Yanovsky, 340 N.J. Super. 1, 773 A.2d 711 (App. Div. 2001)(Police Must Possess Articulable Suspicion to Request Consent Search pursuant to Carty)
• State v. Elders, 386 N.J. Super. 208, 899 A.2d 1037 (App. Div. 2006)(Nervousness and furtive gestures ordinarily do not give rise to an articulable suspicion suggesting criminal activity to permit a consent search).
• State v. Carty