Illegal Police Activity Negates Consent to Search

front door.jpgArrests happen. Unfortunately, some of these arrests occur after a citizen signs a consent to search form. But, signed “consent to search forms” don’t mean much when they’re obtained after illegal police activity. I know what you’re thinking, “yea, I knew that”, but as a criminal defense attorney here in Orlando for the past 17 years, I never grow tired of discussing cases where police activity has been deemed illegal. Such issues were addressed in the recent case of Diaz v. State, 34 So.3d 797 (4th DCA 2010).

Diaz was arrested for trafficking in heroin and possession of drug paraphernalia. His arrest arose out of undercover police surveillance of a house where police allegedly witnessed a hand to hand drug transaction (if I had a nickel for every time an officer claims to have seen a hand to hand transaction…). Eventually , police make an arrest of one of these persons as she exits the home. Her arrest is only five feet from a wide open front door. Thus, the police see an open door, hear people inside, and conduct a “protective sweep” (search) of the house both for their “well being, [and] making sure no one is armed”.

Trafficking amounts of heroin were found in a back bedroom where Diaz was also located. Diaz and his girlfriend did grant the police “consent” to search via their signed consent forms (they were ‘uncuffed’ for a moment to sign the document, how kind of the police). Diaz argued that the officers had no right to enter his home to conduct a protective sweep since the initial arrest occurred outside the home and the officers had no reasonable belief, based on specific and articulable facts, that the home contained persons that posed a danger to them. Thus, any consents given after the illegal entry should be considered invalid. The trial court didn’t buy this argument, and convicted Diaz after his plea.

The appeals court disagreed, overturning the conviction because they found that the police were not justified in entering the defendant’s house without a warrant, noting that the officers articulated no specific reasons for believing that anyone in the home posed a danger to law enforcement. As such, the consents to search given by the defendant after said illegal entry to the home was invalid. The court quoted well established law that “where … a ‘consent [to search] is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search.’ ” Gonzalez v. State, 578 So.2d 729, 734 (Fla. 3d DCA 1991)