Legal Question in Criminal Law in West Virginia

I understand that a person must willingly give consent to search. If a person was bullied and intimidated to sign a consent to search their cellphone, then I understand that whatever was found on it would be inadmisable in court if proven. My question is, if there were search warrents issued based on what was found on the phone, would the warrents be legal or are the things taken based on that search warrent inadmissable as well?


Asked on 8/30/12, 12:07 pm

1 Answer from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

Consent is not always necessary before a search. Sometimes police seek and obtain consent even when they don't need to get it. In a situation like that, obtaining consent improperly would not invalidate the search. Besides, what you call bullying and intimidation might not appear that way to a judge.

Your question seems very careful not to say who conducted the search. Was it a police officer? Was it someone else acting on the government's behalf? If it wasn't, then the Fourth Amendment's protections would not apply. So for instance, if your boss (at a private company) bullies you into letting her search your phone, then there would be no Fourth Amendment violation and the resulting warrants would be valid.

If the warrants were invalid because they were based on the fruits of an improper search, then evidence obtained via those warrants would be tainted and would presumptively have to be kept out of evidence. But there are exceptions to this rule. One is that evidence the authorities would have found anyway by other means does not have to be thrown out just because they found it sooner due to an improper search.

Without knowing what happened, I can't assess your chances of keeping the evidence out of court.

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Answered on 8/30/12, 12:19 pm


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