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Media > Newsletters > Law Enforcement Bulletin > December 2012 > State v. Powell — Second District Court of Appeals (Champaign, Clark, Darke, Greene, Miami, and Mont

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State v. Powell — Second District Court of Appeals (Champaign, Clark, Darke, Greene, Miami, and Montgomery counties), Nov. 2, 2012

Question: Is a suspect’s consent to search freely and voluntarily given when law enforcement doesn’t read a consent to search form verbatim?
Quick Answer: Yes, as long as the form is explained to the suspect, and it’s signed freely, the consent is freely and voluntarily given.

Facts: At about 5:15 a.m., a detective went to defendant Christopher Powell’s residence to investigate a recent tip regarding marijuana thought to be on the premises. The detective was accompanied by four or five other detectives and deputies; one of the deputies was in uniform, while the other officers were in plain clothes. The officers drove a total of four vehicles, including two cruisers, to Powell’s home. They knocked on Powell’s door, and he answered after several minutes. Powell had been sleeping, but he let the officers inside his home after the detective explained that he had received a complaint about marijuana being grown and preserved on the property. The detective told Powell that the tip concerned an unattached garage on the property and that the officers needed to take a look. But he also told Powell that, depending on what was discovered in the garage, the rest of the residence may need to be checked. The detective then explained a consent to search form. Powell signed the consent form, the detective signed it, and another officer signed it as a witness.
The officers searched the garage, finding old marijuana shake leaves. The detective then told Powell that they needed to check the back of Powell’s property to make sure everything was OK. The detective shone a flashlight inside a back window of the home and saw marijuana plants hanging upside down to dry. The detective told Powell that they had to go inside and collect the marijuana, and Powell said that he understood. Powell was charged with various drug crimes, and he filed a motion to suppress the fruits of the warrantless search.
Why this case is important: The court found that the consent to search form was explained to Powell before he signed it and before any search began, even though Powell alleged that he never read the form before signing it. Plus, there was no evidence that the deputies displayed any weapons or engaged in any conduct toward Powell that overcame his will. Powell’s consent was not coerced based solely on the time of day, the fact that he had been asleep, his lack of experience with law enforcement officers, or the number of officers present.
Keep in mind: Consent to search must be freely and voluntarily given, and your best line of defense is the consent to search form. You should make it a practice to get the suspect to sign the form before the search if possible. That way, any other conduct that a court might construe as coercive may be offset by the consent form, as in this case.
Visit the Second District Court of Appeals website to read the entire opinion.