Conditional consent for a search - legal?

Factual Questions
1

This is purely a hypothetical question. There have been several threads here on police searching a vehicle with probable cause, police asking if they can search a vehicle and the driver providing or withholding consent, etc. My question is whether conditional consent is valid.

Say I get pulled over for speeding. The officer asks if he can search my vehicle. I give one of these responses:

You can search my vehicle for exactly ten minutes, then I want to leave. If you don’t agree to this, I don’t consent.

You can search my vehicle, but I want to videotape you searching it. If you don’t agree to this, I don’t consent.

You can search my vehicle, only if you agree not to give me a speeding ticket. If you don’t agree to this, I don’t consent.

So what happens now? Can the officer take this as full consent, and search while ignoring my conditions? If he does so, and finds something illegal, would the fact that he ignored my conditions be a legal basis to have the search thrown out?

Are the 3 cases even the same legally?

Case 1 - 10 minutes into the search, I say “I now withdraw consent for this search. Please stop immediately.” Does he have to respect that?

Case 2 - He says “Sorry, you can’t tape the search,” and I say “Then you do not have my consent.” before the search even starts.

Case 3 - The search is complete, he’s found nothing, and he still writes me a $150 ticket for speeding - could I fight the ticket on those grounds?

Final question - If the answer is the officer would have to respect my conditions for search, how likely is it that an officer would agree to a search under those conditions?

I live in MA, but I’d be interested in the law in any state.

2

You always have the right to stop the search. If you say “I dont want you to look any further” he has to respect that.

3

Not absolutely true. During the course of the search, the officer might see something that would give him sufficient grounds to conduct a search without your consent, in which case I believe he can continue the search even if you withdraw your consent.

4

Like what? A severed arm? A crack pipe? In that case, it becomes a Carol Search or even maybe a search incident to an arrest, and not a consent based search. But as far as consensual searches go, the owner can always withdraw consent.
If the officer has probable cause to believe he is going to find some specific thing in the vehicle or if he has a warrant, or he just arrested the person, then we’re no longer talking about consensaul searches.

5

My point is that if the officer has found a marijuana joint in your ash tray, telling him “I don’t want you to look any further” is not going to stop him at that point.

6

What’s a Carol Search?

7

I think our good soldier means the Carroll Doctrine. :slight_smile:

8

Can I do a Carol Search?? Please??? :smiley:

9

No-one’s addressed the ‘trading consent for leniency’(Case 3) or Case 2 from the OP yet. Those sound interesting, if legal.

10

Oh, the automobile exception. I’ve never heard it called a “Carroll search” before, which is kinda strange, where have I been?

11

Interesting hypos. I’ve never heard of anyone granting “conditional consent.” It’d be an oral contract between the motorist and the police officer, essentially. You might get into some tricky issues as to the police officer’s status as an agent of the state, and whether he would be legally empowered to agree to something that might harm the state’s interests in a criminal case.

Case 1 - Yes, I think he would, unless (as was noted upthread) he sees something incriminating in the first ten minutes.

Case 2 - No search would take place. You go merrily on your way.

Case 3 - Yes, you could fight the ticket, but it would be your word against his if it went to trial. Unless you’d taped your discussion with him and his verbal assent to your terms, I think the judge (or a magistrate like me) would roll his eyes and impose the fine if you’re convicted.

Finally, I suspect that most police officers would be flummoxed simply by having such an offer put to them. “You’ve gotta be kidding me” would probably be a typical response. Under the rule of “better safe than sorry,” most would probably decline your offer, or would call a superior on the radio, who would then decline.

12

Probably. It is possible to limit one’s consent to search. And as others have said, you can revoke your consent at any time. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=docket&no=023317 If the officer has other grounds to search by the time you revoke, then different rules apply.

Then the officer doesn’t have your consent, and will need other grounds to do so.

I suspect you’re stuck, but I haven’t seen a case on point.

Dunno.

13

If the only grounds for a search is your consent, you may limit or condition the search in any way you wish, but the burden is on you to be very clear and unambiguous on what those limitations are. SCOTUS most recently addressed scope of consent in Florida v. Jimeno, 500 U.S. 248 (1991), and said that if you give consent to search your vehicle, you’re impliedly giving consent to search closed containers in the vehicle, like a paper bag that may hold drugs in the floorboard, although they couldn’t bust the lock off of a suitcase in your trunk.

So for cases one or two, sure, you can limit the scope of your consent in that manner. As to the videotape of the search, if he has a video unit on board, he’s probably all too happy to; he’s probably already videotaping the conversation he’s having. As to the others, in my experience officers don’t like limitations in searches. They would probably attempt to talk you out of whatever limitation you were trying to impose, but if they didn’t agree, then no search.

On one occassion while in my last year of law school when I was pulled over for SIACWHLH (speeding in a Camaro while having long hair) I told the officer (and under other circumstances I wouldn’t have done this, but the officer was being needlessly snide) that I would gladly give consent if he was giving me a warning, but if I was receiving a ticket, no dice. The officer informed me that I could (1) consent, or (2) wait 45 minutes to an hour and a half by the side of the highway for the K9 unit to get there. I thought about asking the officer what his articulable reasonable suspicion for detaining me for that length of time was, but there comes a time to shutta you moutha and I decided that time had come.

As to number 3, nope. If he had a legally valid reason for pulling you over and ticketing you, the fact that he what he really wanted was a closer look at you to see if you were carrying contraband is no defense. That’s a classic “pretext stop,” and it’s perfectly legal.

Don’t feel bad, Carroll is a fairly old case, from 1921, and there have been many cases that followed. You’re just as likely to hear “automobile exception” nowadays. :slight_smile:

14

It might be a different case if the officer agreed to the condition (no ticket in exchange for search), found contraband, and then tried to prosecute for the contraband *and * the traffic offense. There, you’ve conditioned your consent and the condition has been exceeded. In the hypo, he’s not trying to exclude evidence found when the search exceeded the scope of consent, but to enforce an amnesty agreement that the cop probably has no authority to make.

Even my modified hypo, I think it’s a longshot for two reasons:

  1. Like I said, I don’t think the cop can make an enforceable amnesty agreement.

  2. The condition has nothing to do with the scope of the search. The cases on limited consent mostly deal with what kind of a search the defendant has agreed to. E.g., did the consent extend to closed containers or the trunk? Not an agreement about what else will happen to the defendant. Sort of a variation on the Bugs Bunny-Rocky’s not in the stove bit.

15

Ah, good point; I wasn’t reading the question that way. I was looking at it as if case 3 was just a pretext stop with an unconditioned consensual search, like “can I get out of my ticket if he really wanted to search me for drugs and didn’t find any?” Actually, I prefer that question, because it’s much easier. :slight_smile:

16

Slight hijack: Don’t all cruisers have cameras these days? I just assumed they did, it being 2007 and all.

17

No, most police cruisers in Cleveland, for instance, don’t have them. Too expensive, or so TPTB say. Many rural areas also can’t afford them.

18

That’s not a common term? That’s the only term I’ve ever heard. What about Terry Stop? Do you lawyers have a fancy term for that, too? :wink:

I’m thinking Carroll Search became a term for a search based on the Carroll Doctrine, much the same way that Terry Stop came from Terry v Ohio. I’ve never even heard the phrase “automobile exception” until now. 'Course, I was taught at the Police Academy, and not Law School.

19

I don’t think I’ve ever heard it called a *Carroll * search. Terry stop, *Miranda * warning, *Kastigar * letter I’ve heard; even Weingarten rights (different context). Carroll, not so much. I’ve always called it the automobile exception.

20

No, a Terry stop is what it’s called. I speculate that the difference is between a type of stop – the whole stop – and a part of a stop. And I never said Carroll stop wasn’t a term used by other lawyers; for all I know it could be. I just said I wasn’t familiar with it. My ignorance was genuine. :slight_smile: