法律英語導讀(39)

　20. If a Police Officer Tricks or Coerces Me Into Consenting to a Search, Does My Consent Make the Search Legal?

　　No. To constitute a valid consent to search, the consent must be given ’’freely and voluntarily." If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search. Often, a defendant challenges a search on the ground that consent was not voluntary, only to have a police officer testify to a conflicting version of events that establishes a valid consent. In these conflict situations, judges tend to believe police officers unless defendants can support their claims through the testimony of other witnesses.

　　Case Example 1: In the example above, assume that before Caryn-Sue consents to Officer Mayer’s entry into her home, Officer Mayer falsely tells her, "It will do you no good to refuse entry to me. I’ve got a warrant, so I’m prepared to come in whether or not you consent." Caryn-Sue replies, "If you’ve got a warrant, I might as well let you in. Look around all you want."

　　Question: Has Caryn-Sue validly consented to the search?

　　Answer: No. Her consent is not voluntary. It is the result of the officer’s false claim of having a warrant. However, it may be Caryn-Sue’s word against the officer’s as to whether the officer tricked her into consenting.

　　Case Example 2: Undercover cop Jones, posing as an employee of the gas company, asks Casey to allow him into Casey’s home to check for an alleged gas leak. Casey agrees. Jones enters and sees drugs and drug paraphernalia in the kitchen.

　　Question: Is the police search of Casey’s home valid under the Fourth Amendment?

　　Answer: No, consent that is obtained by fraud is not considered voluntary, and Jones’s lying and saying he was a gas man would be fraud.

　　Case Example 3: Same case, but this time Jones has been posing as a parent in Casey’s son’s school and has made friends with Casey independent of his undercover mission. Casey invites his "friend" Jones in to play cards. Once inside the home, undercover agent Jones unexpectedly sees illegal drugs. He seizes the drugs and arrests Casey.

　　Question: Was the police entry into Casey’s home valid under the Fourth Amendment?

　　Answer: Yes. Casey was not tricked or coerced in any way to let Jones in. He just didn’t know who his friend really was. The Constitution does not prevent the consequences of having what the courts call a "false friend."