Consent to Search

Posted by: New Jersey Criminal Lawyer, Jeffery Hark
Under Article I, paragraph 7 of the New Jersey State Constitution. the validity of a consent to a search must be measured in terms of waiver. State v. Johnson, 68 N.J. 349, 353-54 (1975). “Where the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.” Id.

Consent to search is not valid when it is the result of duress or coercion, whether express or implied. Johnson at 352 quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). In Schneckloth, the United States Supreme Court held that where the subject of a search is not in custody and the state attempts to justify the search on the basis of consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied, and that while knowledge of a right to refuse consent is one factor to be taken into account, it is not an indispensable element of an effective consent. Id. at 248-49. If an officer threatened you while attempting to obtain your consent to search your vehicle or personal property, there is a strong possibility that any consent given by you is invalid. Consent obtained through the use of threats will likely be considered involuntary under both New Jersey and Supreme Court precedent.

Valid consent for a search requires not only a voluntary relinquishment of rights, but also that such rights were knowingly waived. State v. Johnson, 68 N.J. 349, 353-54 (1975). The State has the heavy burden of proving the consent was knowingly, voluntarily, and intelligently given by clear and positive testimony. State v. King, 44 N.J. 346, 352 (1965). The burden is on the State to show that the individual giving consent to the search knew that he or she had a choice in the matter. Carty, 170 N.J. 632, 639 (2002).

State v. Domicz, 188 N.J. 285, 306 (2006); see also Carty, 170 N.J. at 644. To determine whether the consent was voluntarily given or coerced, the court must determine whether the person had knowingly waived her right to refuse to consent to the search. Id. at 308. An essential element of whether consent was voluntary is “‘knowledge of the right to refuse consent.’” Id. at 317 (quoting State v. Johnson, 68 N.J. 349 (1975)).

If you were not informed you had the right to refuse consent to search prior to the time you orally told the police they could search your vehicle or personal property, that consent may be found to be invalid. Hark & Hark has handled and won numerous cases wherein an individual was forced to give “consent” to search their property and the court found that such consent was invalid.