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Are Judges Helping Cops Commit Perjury about Consent Searches?

By January 19, 2011

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Are judges making it easy for cops to commit perjury about consent searches by being a rubber stamp for whatever they say, regardless of the believability of the story? An interesting article in The Volokh Conspiracy called Police Officers Committing Perjury in Testimony about Consent Searches has drawn attention to a recent ruling from the Fourth District Court of Appeals in Florida. In the case of Ruiz v. State, the Florida appellate court upheld a trial court's finding that the search of a defendant's home was consensual. However, the appellate court made it clear that they were upholding the trial court's ruling because the legal standard required them to do so, and not because they actually believed the testimony of the officers.

The appellate court did a marvelous job of calling the officers liars and the trial judge a "rubber stamp," without directly calling them by those names. Addressing the issue of how the legal standard for what qualifies as consent has deteriorated in recent years, the appellate court said:

"Over time, the concept of "consent" to a search has become divorced from its common meaning. In the Fourth Amendment context, "consent" has come to mean that set of circumstances that the law will tolerate as an exception to the probable cause or warrant requirement. What passes for "consent" today would not have survived a motion to suppress 25 years ago. Now, even aggressive conduct by the police will not necessarily vitiate "consent" when viewed as a part of the "totality of the circumstances.""

The appellate court went on to state that cases like this one "call into question the fairness of some trial court proceedings." In a mocking tone, the Florida appellate court summarized what it was being expected to believe as the facts:

"The profusion of consent cases requires trial judges, the gatekeepers of the Fourth Amendment, to critically evaluate the testimony given at hearings. Cases like this one call into question the fairness of some trial court proceedings. On the pages of the record, the story told by the police is unbelievable--an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is "nonchalantly" and "casually" approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment."

Ultimately, the appellate court says they have to affirm the trial court's ruling because the legal standard requires them to do so. But they don't affirm the case without taking one final parting shot at the trial judge:

"Yet, as an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives' testimony supports the court's ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person's home, but were the factors bearing on the voluntariness of the consent scrutinized "with special care?" Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of "consent" cases that have come before us, the finding of "consent" in so many curious circumstances is a cause for concern."

What are your thoughts about how common it is for police officers to testify that defendants gave consent to their homes or cars being searched? Are cops lying, or are there just an abundance of criminal defendants who are stupid enough to actually consent to a search knowing that the search will reveal drugs or other contraband? Have you ever seen an appellate court issue an opinion like the Ruiz v. State case, where the trial court is affirmed while being derided as a "rubber stamp" for law enforcement? Share your thoughts in the comment section below, or go to our Forum to start a discussion.



January 19, 2011 at 4:15 pm
(1) Richard Jensen says:

Excellent opinion and courageous ruling by Judge Gross. Finally, an appellate judge who calls cops and judges on the carpet. I think he must have been so frustrated to see another of 1,000 “consent searches” a year. The consent must be freely and voluntarily given. It is almost always obtained with a threat or violence or both.

September 9, 2011 at 2:42 pm
(2) Mark Overall, Esq. says:

Attorney Pfeifer, I believe that it’s both. As a clinical student and law clerk at the Public Defender’s Office in Baton Rouge, LA, I specialized in writing motions to suppress drugs, guns, etc. based on unconstitutional searches and seizures. I probably wrote 25-30 of them every week. It’s a universal fact that cops lie to substantiate unconstitutional searches and arrests.

However, I’ve also seen SEVERAL defendants openly admit to consenting to searches despite knowing that contraband will be found because they didn’t know that they had the right to refuse. The breakdown comes from the Supreme Court. Current law states that defendants don’t have to be informed that they can refuse a search in order for the search to be valid. I, like many legal minds, find it incongruous that a person can “knowing and voluntarily” waive a right as precious as this without ever being informed of its existence.

But, I fervently agree that judges need to do better at scrutinizing the testimony of police officers during suppression hearings. I was fortunate enough to work in the courtroom of a judge who did just that in Louisiana and in my mind, she will always rank as one of the best criminal judges I’ve ever appeared before (of course, it bears mention that she is a former public defender herself). Great article, counselor.

Mark Overall
Attorney at Law

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