Part III- Illegal Search-Consent Searches-Continued from 9/3/08
Consent searches are yet another exception to the search warrant requirement. Consent search issues generally arise in drug (N.J.S.A. 2C:35-1, et al) or weapon cases N.J. S.A. 2C:39-1, et al). What is a Consent search? When the prosecutors and/or police can establish that : (1) a person's VOLUNTARY consent to perform a search was properly given, (2) that the person was authorized to give his or her consent to search; (3) and the search was strictly limited to the area and conditions granted by the person giving consent --then any contraband found pursuant to the search is deemed to have been legally obtained and admissible against you at your criminal or municipal trial.
In State v. Johnson, 68 N.J. 349 (1975), the Supreme Court of New Jersey held that a valid consent search requires that the consent be: (1) voluntarily tendered; and (2) that the person tendering consent must be knowingly waiving his or her right to waive consent.
Essentially, the party must know that they have the right to refuse to give consent to the police. As it applies to automobile searches, the police must have a reasonable and articulable suspicon that a search will produce evidence of criminal activity before requesting a driver's consent to search a car following a routine traffic stop. State v. Carty, 170 N.J. 632 645-646, mod. on other grounds. 174 N.J. 351 (2002). The Carty case arose out of racial profiling and has expanded the rights of individuals who are under pressure to consent to a search of his or her vehicle after he or she has been stopped.
The area of Consent Searches is vast and more expansive than one blog article can ever address. The author, Thomas Martin, welcomes any comments or emails that address any addditional questions the audience may have on this evolving area of the law.
