The 4th Amendment protects all of us from unlawful search and seizure. Above all, the place in which this constitutional right is most important is in our homes. Simply put, a person's home is their castle, and they should be free from police intrusion. But the law has carved out exceptions to this principle. The first exception is, of course, a search warrant. With a valid search warrant obtained with probable cause, detailing the places to be searched and the items to be seized will more than likely hold up against constitutional challenge.
However, many times cops don't want to go through the hassle of getting a search warrant. In part it's because they do not want to take time away from their investigation. On the other hand, they may not possess the probable cause needed to obtain one.
An exception to the 4th Amendment's warrant requirement is consent. That is, if the homeowner, lessee, or somebody with apparent authority (somebody whom the cops believe has authority to grant consent) gives the police consent to search the home, then the search and subsequent seizure of any contraband will be upheld as valid. That's because by giving officers consent to search, you waive your 4th Amendment right to be free from unlawful search and seizure.
However, the consent must be given freely, voluntarily, and without fear, coercion, or threat.
That means that officers cannot threaten or force you into giving them consent to search your home. They cannot detain you for a prolonged period of time prior to obtaining your consent. If you are going to waive a constitutional right, the law says that you must do so on your own volition - not by way of police intimidation.
So, if you have been the victim of an unlawful police intrusion, ask yourself the following:
1) Did the police have me handcuffed when they obtained my consent?
2) Did the police threaten to hurt me if I didn't allow them to search my home?
3) Did the police arrest or threaten to arrest a loved one in order to gain my consent?
4) Did the police detain me for an hour or longer prior to obtaining my consent?
These are just a few factors that a good criminal defense attorney should look into when addressing a consent search situation.
If consent to search your home was somehow obtained, and as a result of that "consent" police discovered marijuana plants, you still still be arrested. Depending on the number of plants, your charges could range from felony possession or marijuana, possession of marijuana with intent to sell, attempted trafficking, or trafficking in marijuana.
For legal purposes, it should be noted that marijuana is referred to as "cannabis."
The legal process, however, enables your defense lawyer to file a motion to suppress based on an illegal consent search. If your consent was not freely and voluntarily obtained, your attorney can file a motion with the court that will exclude the marijuana from evidence. Without the marijuana the State cannot proceed in its prosecution and the charges will be dropped.
However, a detailed investigation of the case by your defense attorney is necessary to accomplish this goal. Eyewitness accounts are helpful when combating the recollection of the police. I can assure you that trained narcotics officers will write their reports to reflect a perfect, 100% constitutional search. But if you were handcuffed and detained for many hours while officers tried to bully you into giving consent, eyewitness testimony of friends, family, or neighbors who witnessed this detention will be able to testify as to the time you were in custody. If the cops handcuffed you at 3 pm, and didn't search your home until 7 pm, that means you spent 4 hours in custody before you gave consent to search. That is not free and voluntary consent!
We have laws for a reason. That reason is protect our right to be safe in our own homes. Our founders drafted the 4th Amendment so that the government (police) could not enter your home at any time for any reason, much like they could in the days leading up to the American Revolution. Police, however, sometimes forget that the law applies to them, just as it does to us. If police abuse their power when trying to search your home, you are entitled to have their search reviewed by a judge to assess whether or not it was done in compliance with the 4th Amendment.
If you or someone you know has been arrested and charged with cultivating marijuana, or operating a marijuana grow house in Miami-Dade County or Broward County, call my office to discuss your defense.