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Determining Voluntariness of Consent to Search in Florida


If an officer wants to search your vehicle or home, he or she must first obtain valid consent. In order for consent to be valid, the accused must freely and voluntarily give the consent. It follows, therefore, that if an officer obtains consent as a result of threats, intimidations, misrepresentation, force, or other improper police conduct, the consent will be deemed invalid and the evidence found as a result of this invalid search may in turn be suppressed and excluded from being admitted in court.

“Totality of the Circumstances” Approach               

If a person subject to search alleges consent was invalid as a result of being threatened, coerced, or due to improper police conduct, a court will employ a “totality of the circumstances” approach. This means a court must consider all facts of the search, the context in which the search occurs, and from there, determine if the consent given was valid. In using this approach, the court will look to whether the police conduct at question would lead a reasonable person to believe they were free to decline the officer’s request for search.

Factors a Court Will Consider for Voluntariness of Consent               

Through issuing many court opinions regarding the validity of consent, Florida appellate courts have helped future litigants focus on several key factors they will look at to determine if consent is voluntary:

  1. Whether the accused was detained for an unreasonable amount of time (Nelson v. State)
  2. Whether the accused was detained and then was asked repeatedly to consent before consent was later obtained. (Nelson v. State)
  3. Whether one of the officers misstated the law to create false obligation in the mind of the accused that they had to consent to the search (State v. Slaney)
  4. How many officers were present at the scene of the search (McDougall v. State)
  5. Whether one or more of the officers tried to claim the accused would be released if they allowed the officer(s) to search (Horvitz v. State)
  6. Whether one of the officers promised that the accused would not be prosecuted if they consent to the search (Fillinger v. State)
  7. Whether the officer told the accused they would not be held for questioning if the accused consented to search (Hawthorne v. State)

Contact Our Experienced Criminal Law Attorneys Today

Being faced with a police officer asking to search your private belongings or residence is in itself an intimidating situation. If you believe an officer obtained evidence through invalid consent, you should contact the Winter Park criminal defense attorneys at Cotter & Zelman, P.A. Our experienced attorneys will walk you through what happened and help you determine whether consent was valid and if it was invalid, help you suppress the evidence in court. Contact us for a free consultation today.


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