Most of the time we advise our clients not to consent to a search of their persons, homes, cars or belongings, no matter what the police say to them.
If you are arrested and the police want to search your home or belongings, you can invoke your right to counsel, but that won’t save you from evidence getting used against you if you consent to the search. Once you say you want to consult with an Oregon criminal defense attorney about the search, the police aren’t supposed to interrogate you any further but they can request and get your permission for the search. We often recommend that our clients do not give police their permission.
In State v. Hatfield (2011), the Oregon Court of Appeals addressed a situation where Mr. Hatfield was arrested on drug-related charges. He consented to a search of his car and his person but insisted that he would not consent to a search of his home. The police told Mr. Hatfield that they would simply get a search warrant to search his home. Mr. Hatfield was concerned about the well-being of his dogs and the sanctity of his home and feared the police would mistreat his pets or his belongings. He unequivocally invoked his right to a lawyer by saying he wanted to call a lawyer to ask about the search. If only he had stopped communicating with officers at that point. They offered him a chance to call an attorney and would have allowed him to take off his handcuffs to make the call. Instead, Mr. Hatfield told the police that if he would be allowed to put his dogs away and smoke a cigarette and if they would treat his belongings carefully he would consent to a search of his home. This was not a good trade for Mr. Hamilton, as the police found evidence of Unlawful Manufacture of Marijuana in his home.
The Court differentiated the request for a consent to search from an interrogation. Mr. Hatfield was entitled to have an attorney present for any further interrogation but requesting permission to search is not an interrogation so the officers were constitutionally entitled to make the request to search even after Mr. Hatfield had requested the assistance of an attorney.
Once you unequivocally invoke your right to counsel, officers are not supposed to question you about the crime. However, they are allowed to continue gathering evidence that can be used against you. You do not need to help them by consenting to a search of your body, your bags, your car or your home. The advice we give our clients is: tell the police you do not wish to speak with them, you want to talk to a Portland criminal lawyer and you do not agree to a search of your person or property.
By James F. O’Rourke Jr.
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