No provision of the Bill of Rights has had a greater impact upon NY State criminal procedure than the Fourth Amendment. The Fourth Amendment governs searches and seizure conducted by federal and state governmental officers. In our country, searches of an individuals’ private property may only be performed after a search warrant is signed by a judge. An exception to this rule is when an individual gives the police valid consent to search their property. This can pertain to anything, including a persons’ home, car, phone or handbag. Keep in mind that the prosecution has a heavy burden of establishing that someone consented and that it was voluntarily given. That was the exact issue that presented itself in United States v. Whisenton, a recent Court of Appeals case out of the 8th Circuit.

In Whisenton, agents arrived at the defendant’s home, and when his wife opened the door, they pushed their way in. The agents then forced the defendant to sit on the couch while they conducted a “safety sweep” of the home. After asking the defendant twice for permission to search the home, the defendant asked the agents if they were going to “tear up his house.” When they told him they would not, he gave them consent to search, despite his mother’s objections.

The Court ruled that the 15 minutes the defendant spent smoking a cigarette while calmly discussing his options with the police before consenting to the search purged the taint of the officers’ illegal and forced entry into his home. The Court explained that the defendant’s acquiescence was an act of free will that erased the Fourth Amendment violation because the officers were “cordial and professional” and gave him ample time to “pause and reflect” before signing a written consent form.

How this 15 minute gap where the defendant was “allowed” to smoke a cigarette in his very own home while confined to his couch while 2 armed and uniformed agents hovered in his living room after barging through his front door is absolutely mind-blowing. It seems clear that the police had sufficient control of the defendant’s free will and that the signed consent was hogwash. If the police obtain evidence against you be violating your privacy, it is crucial to speak with an experienced New York or Brooklyn criminal defense attorney who understands the nuanced law of search and seizure. If the evidence was obtained illegally, it can be suppressed. And remember, you do not have to let the police into your home…even if they do seem polite and courteous.

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