Gambone Law October 2018

Gambone Law

Licensed in Pennsylvania and New Jersey


October 2018

Does Consent Matter If the Stop Is Illegal?

I often advise clients never to give consent for police officers to search their property or frisk them following a traffic stop in the vehicle, known as a vehicle search, or while they’re walking down the street, known as a pedestrian stop. Consent, in most situations, will eliminate all of your constitutional rights, and specifically those under the Fourth and 14th Amendments to the United States Constitution, as well as Article 1 of the Pennsylvania Constitution and Article 1, Paragraph 7 of the New Jersey Constitution. Consent Based on an Illegal Stop If you’re facing criminal charges based on some type of contraband, and those items were found as a result of a police search, your criminal defense lawyer must evaluate the legality of that search. Even if you gave consent for the search, you should never assume that you don’t have a case for a potential illegal search and seizure issue. As I have stated in the past, a motion to suppress based on an illegal search and seizure is often the defense lawyer’s strongest tool or argument, especially where the issue of possession is not in question. Police do not need to find contraband, such as drugs,

narcotics, or a handgun, on your person for you to be convicted of a crime, such as possession with intent to deliver (PWID), possession of an illegal firearm, a violation of Uniform Firearms Act, or conspiracy related to it. Drug Profiling and Consent Searches While giving consent will obviously make a pre- trial motion much more difficult, consent isn’t valid if police have violated your rights prior to securing that consent. If, for example, police have stopped or seized you for investigative purposes, or if they have arrested you without sufficient probable cause, the consent that they later obtained is invalid. If, for example, police stop you simply because you fit a “drug dealer profile,” a Pennsylvania court will more than likely find that this stop wasn’t based on sufficient reasonable suspicion. In this case, even if you gave consent, a court will find that the consent isn’t valid. Random Police Stops Are Illegal Keep in mind that the police in Pennsylvania can’t randomly stop persons and vehicles without reasonable suspicion. Anything done after that illegal stop is therefore illegal, even if

and do not tell you that you are the target of a criminal investigation, that is illegal. If the police inform you that they stopped you or are there for some other purpose, the court could find the search illegal. If the police are involved in such activities, it makes the evidence they gather inadmissible. Depending on the situation, giving your consent won’t be the end of the world, but I highly advise that you don’t take that risk. Never give consent to the police to search your property or your person. Don’t give up your constitutional rights by giving consent during a stop, vehicle or otherwise. For more information on these important topics, I encourage you to visit my website at –Alfonso Gambone

it involved consent. Further, even if police have reasonable suspicion or probable cause to stop a person or a vehicle, they cannot lengthen that detention if justification for that stop no longer exists. There is a substantial amount of Pennsylvania case law on these topics. Consent Given Based on Deception Finally, consent obtained under false pretenses or by deception could be held invalid. For example, if the police stop or approach you

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