You are here: / / THE OFFICER WHO CONVINCED DEFENDANT TO CONSENT TO THE SEARCH TOLD THE DEFENDANT...
,

THE OFFICER WHO CONVINCED DEFENDANT TO CONSENT TO THE SEARCH TOLD THE DEFENDANT HE WOULD BE HAPPY TO APPLY FOR A WARRANT BUT DEFENDANT WOULD BE DETAINED UNTIL THE WARRANT WAS PROCURED; BECAUSE THE POLICE DID NOT HAVE PROBABLE CAUSE FOR A SEARCH WARRANT, THE OFFICER’S STATEMENT WAS MISLEADING; DEFENDANT’S CONSENT TO SEARCH WAS NOT VOLUNTARILY GIVEN (FOURTH DEPT).

The Fourth Department, suppressing the drugs found in defendant’s car and defendant’s related statements, determined the consent to search was not voluntarily given. The officer told the defendant he would be happy to apply for a warrant but defendant would be detained until the warrant was obtained. However, the officer told the defendant, if he consented to the search he would be allowed to leave, even if contraband were found. The officer did not have probable cause to search the car, so his claim he would be happy to procure a warrant was misleading:

… [T]he record establishes that defendant consented to the search of his vehicle with the understanding that, if he refused, the detective would obtain a warrant and search the vehicle anyway, and that in the meantime the vehicle would be detained at the scene. We note that a suspect’s consent to search that is based on threatened action by the police is deemed voluntary only where there are valid legal grounds for the threatened action … . Further, we agree with defendant that the voluntariness of his consent therefore turns on whether the detective could lawfully have obtained a search warrant, which may be issued “only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur” … .

In our view, the detective did not have probable cause to believe that defendant had committed a crime or that the vehicle contained contraband when defendant consented to the warrantless search, and, thus, the detective’s threat to obtain a search warrant was hollow and misleading. People v Barner, 2023 NY Slip Op 05839, Fourth Dept 11-17-23

Practice Point: If a defendant’s consent to a search is procured by a misleading statement by a police officer, the defendant’s consent is not voluntarily given.

 

You might also like
EVIDENCE THE CHILD WAS OFTEN ABSENT FROM SCHOOL WARRANTED A HEARING ON FATHER’S PETITION FOR A MODIFICATION OF CUSTODY (FOURTH DEPT).
SURCHARGE, DNA DATABANK FEE, CRIME VICTIM ASSISTANCE FEE SHOULD NOT HAVE BEEN ASSESSED AGAINST A JUVENILE OFFENDER (FOURTH DEPT).
School Not Liable for Injury to Student Crossing Street to Enter School–Student Was Not In the Custody or Control of the School When He Was Injured
THE PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CROSS EXAMINE THE DEFENSE EXPERT USING DECEDENT’S HUSBAND’S DEPOSITION IN THIS NEGLIGENCE AND PUBLIC-HEALTH-LAW VIOLATION CASE; THE DECEDENT’S HUSBAND, A NONPARTY, WAS AVAILABLE TO TESTIFY; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE (FOURTH DEPT).
IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT. 
WHERE A MOTION TO VACATE A CONVICTION IS BASED UPON EVIDENCE OUTSIDE THE RECORD AND EVIDENCE IN THE RECORD, ALL OF THE EVIDENCE IS ADMISSIBLE IN THE HEARING ON THE MOTION; COUNTY COURT SHOULD NOT HAVE RESTRICTED THE PRESENTATIOIN OF DEFENDANT’S ALLEGATIONS OF INEFFECTIVE ASSISTANCE TO ONLY THOSE WHICH WERE OUTSIDE THE RECORD (FOURTH DEPT).
VENUE FOR THIS HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION SEEKING TO ANNUL A TOWN LOCAL LAW WHICH CREATED A WILDLIFE OVERLAY DISTRICT IS THE COUNTY IN WHICH THE TOWN IS LOCATED PURSUANT TO TOWN LAW SECTION 66 (1) (FOURTH DEPT).
PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE PETITIONERS (THREE NYS LEGISLATORS AND AN ADVOCACY GROUP) DID NOT HAVE STANDING... IN A MANDAMUS PROCEEDING WHICH IS TRIGGERED BY A DEMAND BY PETITIONER, AN UNREASONABLE...