WHAT HAPPENS IF A PERSON CONSENTS TO A SEARCH OF THEIR PROPERTY BUT THAT CONSENT IS NOT FREELY AND VOLUNTARILY GIVEN?

If a person consents to a search of their property but that consent is not freely and voluntarily given, the search may be considered unlawful and any evidence obtained as a result of the search may be excluded from evidence in court.

The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures by the government, and it requires that law enforcement officers have probable cause and a warrant to search an individual or their property, unless an exception to the warrant requirement applies. One exception to the warrant requirement is consent. If an individual voluntarily consents to a search, law enforcement officers do not need to have probable cause or a warrant to conduct the search.

However, for consent to be valid, it must be given freely and voluntarily. This means that the individual must give consent of their own free will and without any duress or coercion. If an individual is threatened, intimidated, or otherwise subjected to undue influence, their consent may not be considered voluntary.

If the police obtain evidence as a result of a search to which consent was not given voluntarily, the evidence may be excluded from evidence in court as the "fruit of the poisonous tree." This principle, known as the exclusionary rule, is intended to deter law enforcement from engaging in unlawful conduct and to protect individuals' Fourth Amendment rights.

This case answers the following question: State v. Spagnola, 289 P.3d 68 (Kan. 2012).

What happens if consent to a search is not given freely and voluntarily?

The issue in this case is whether a normal, reasonable person would have felt free to refuse the officer’s request. In order for a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied.

In 2007, an officer observed a car, driven by Spagnola, drive through an intersection without stopping for a stop sign. In addition, the officer noticed that when Spagnola went to pull over, the car rolled onto the curb and into a grassy area next to the curb and then back off the curb before stopping. When the officer approached the car, he saw Spagnola reach down toward his right side, as if reaching into a pocket or the car console. The officer requested backup concerned that Spagnola might have a weapon. Once backup arrived, the officer had Spagnola step out of the vehicle, and that is when the officer noticed that Spagnola had a small clip-on knife in one of his pant pockets. The officer asked if Spagnola had any illegal items on his person and requested to search Spagnola’s pockets. Spagnola gave the officer permission, and the officer found some baggies of methamphetamine in a zipper pocket behind the right cargo pocket in Spagnola’s pants. Spagnola moved to suppress the evidence seized during the search, but the trial court denied the motion and found Spagnola guilty. The Court of Appeals affirmed.

In the course of an investigatory detention, a police officer may conduct a pat-down search for weapons that might pose a danger to the officer. In this case, the officer was justified in a pat-down search given that he had a legitimate concern about the possibility of weapons on Spagnola’s person. However, when the officer searched Spagnola’s pockets, he exceeded the scope of his authority. An officer only has the authority to investigate in the lest intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. In this case, it is evident that the officer did not use the least intrusive means available to dispel the suspicion of a threat.

In order for a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied. In determining whether a citizen’s encounter with police is voluntary, the court has established a nonexclusive list of factors including the presence of more than one police officer, the display of a weapon, physical contact by the police officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or to approach, and an attempt to control the ability to flee. In this case, when Spagnola gave consent for the search, he was placed in a prone position with his hands behind his head and his back to multiple officers. In this position, consent to the search was not voluntarily given free from coercion.

The pocket search exceeded the allowed scope, and Spagnola’s consent was given in a coercive environment. Therefore, the search violated the constitutional protection against unreasonable searches, and the evidence obtained from that search should be suppressed. The judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded.