Criminal defense attorneys, and I suspect district attorneys and judges, have long doubted consent searches. In a consent search the police avoid getting a search warrant by obtaining consent of the person being searched or of the person in possession of the house or car. But these searches are easy to fabricate. There are often no witnesses and its the officer’s word against the defendant’s.
But there is little we can do. The question at trial is not the truth but who can prove their case. We know that the jury is generally more likely to believe a police officer (or five police officers) who testify that our poor 19 year old African American or Latino consented to the search than to believe our client when he or she says they did not consent to the search. This is true even in the senseless situation where the officers find rock cocaine or heroin viewable on the bed or dresser.
Certainly not all consent searches are phoney. People don’t always do wise things.There is no requirement that the police tell a person that they need not consent and people, particularly those from abroad who are not used to the Bill of Rights often consent. Whether the consent is real or not it is often followed by a plea bargain because the police office, who is a professional witness can convince the court and a jury that the defendant consented to the search.
But with the advent of videos things may change. The San Francisco Public Defender’s office has four video tapes taken at the Henry Hotel of police officers entering rooms without consent and later filing police reports in which they state under oath that they received consent to the search. The officers involved are members of the Southern Station plainclothes unit. The District Attorney has already dropped 57 cases as a result of the allegations. An investigation of the unit and its sergeant is occurring. These are serious allegations. Filing a false police report is a misdemeanor and perjury is a felony. If true, these charges are significant violations of people’s Fourth Amendment rights and justly call into question the trustworthiness of numerous other investigations conduct by the unit and by other officers.