UNIQUE SEARCH QUESTION

[JVND]

can police enter a house when the wife gives consent but the husband says no. they then separate them and continue to tell the wife that they will get a warrant and "tear her house apart" unless she consents. the husband is put in a patrol car still not consenting. they tell the wife the husband will be arrested unless she consents.

 

[DT7777777]

This is intimidation in an attempt to gain consent, which makes the consent invalid.
As a result, any evidence obtained during the search would probably be considered the fruit of an illegal search, and thus not admissible in court against the defendant. You should consult with a criminal defense attorney if you are facing criminal charges. There are referrals on this website.

 

[JVND]

thank you for your reply. i and my wife are facing charges and i will consult with an attorney prior to arraignment.this all started when she was stopped 3 blocks from our house for illegal lane change. they had her exit the car and remove her shoes and socks, raise her blouse and unbutton her pants and pull the wait out. they then searched the car thoroughly top to bottom. i was driving past when i stopped to see what was happening. they told me she was under the influence(was not) and then they said i could leave. i stayed as any husband would and then they said i was under the influence. they then drove us in separate vehicles locked in the back to our house . she gave them a very, very small amount of meth that somebody had left from a party. we gave up drugs as a new year resolution. no drug tests. interestinbg huh?

 

[Tracey]

When police rely on consent to justify a search, the consent must be given by someone who has actual or apparent authority to allow police entry into the house. However, the consent can be revoked by any other person who has actual or apparent authority to allow (or forbid) police entry into the house and who is present in the house. Once H revokes consent, police cannot obtain consent from W. Neither spouse's ability to consent to a search is more powerful than the other's. The result is a stalemate.

This is of course why police took H away from the house (where he couldn't forbid the search) and worked on W to get her to consent. This is an obvious attempt by police to get around the 4th amendment, and the search should be completely thrown out. BUT, the judge has to believe your story over the police testimony. Good luck.

You also have a possible case for false arrest, as the 'under the influence' charge seems to have been made up when you didn't leave your wife alone with police. Police shouldn't have returned you to the squad car so they could work on your wife.

The biggest problem is that your wife at least is guilty. She knew the meth was in the house and didn't dispose of it immediately. Thus, she intended to keep it. If she hadn't known about it, she could have argued unwitting possession.


Let us know what the judge says,
Tracey

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.



[This message has been edited by Tracey (edited April 28, 2000).]

 

[JVND]

if i am correct i would think that she was under arrest at the traffic stop. based on the extent of the search and the time (1 hour) if so should they have mirandized her and if they did not wouldnt anything said be inadmissable? also she was arrested for being under the influence . the police are saying she was not yet arrested so they did not have to mirandize her. she could not leave and when she was put in the backseat of an enclosed police car i would think that this is a seizure of a person (an arrest)