What You Can Do If You Gave the Police Consent to Perform a Search (and You Arguably Shouldn’t Have)

Sometimes, in interacting with law enforcement, you may make mistakes. Maybe you said something you shouldn’t have. Maybe you gave the police consent to search when you should’ve declined. Be aware that, even if you made a tactically less-than-ideal choice, there often are still ways to mitigate the damage and protect your rights. An experienced attorney will know how, which is why retaining a knowledgeable Maryland criminal defense lawyer as soon as possible is vital.

A recent criminal case originating in Anne Arundel County illustrates what we mean.

It began with a knock on the door of D.M.’s home. Law enforcement officers questioned D.M. about a suspected upload of illegal content. D.M. signed a written consent allowing law enforcement to search his electronic devices. They collected his devices and, within a few days, made a “mirror-image” copy of his laptop computer’s hard drive.

A few weeks later, the investigators searched the copy. That search allegedly revealed proof of “search terms in [D.M.’s] internet browser history” that indicated D.M. searched for illegal content. They did not, however, find any evidence of actual illegal content on the drive.

While D.M. arguably made some strategic errors in that interaction with law enforcement, he did something right soon thereafter: he retained legal counsel. One week after the initial interaction between the investigators and the suspect, the suspect’s attorney emailed the investigators to withdraw consent to search the devices and to request the return of D.M.’s laptop.

The state sought to use the browser history evidence in its criminal case against D.M. The defendant sought to suppress that evidence, but the trial judge refused. The court eventually convicted D.M.

The defense, however, wisely appealed, and the Court of Special Appeals reversed the conviction, ruling that the trial court should have suppressed the browser history evidence. The undisputed timeline established that, while the investigators copied the suspect’s hard drive before the defense lawyer withdrew consent, they did not perform the search until after they had received that withdrawal-of-consent email.

A Search Performed After Withdrawal of Consent is a Potentially Illegal Search

That timeline was crucial in D.M.’s success as it differentiated his case from other previous ones in which the prosecution had prevailed. Once D.M. signed the consent paperwork, he gave up his privacy rights related to his devices. However, once his attorney sent the withdrawal-of-consent email, D.M. regained his privacy rights regarding those devices… and any copies made of their contents. Because the investigators did not perform their actual search until after the withdrawal of consent, that search necessarily was a warrantless search. Because the state had no basis for conducting a warrantless search, the search was illegal and D.M. was entitled to suppression of the evidence.

The defense lawyer’s swift action (and the police’s lack of it) was crucial in making this evidence subject to suppression and vastly strengthening D.M.’s defense position.

An effective criminal defense is a concerted effort made up of many discrete parts. The first part — and it’s a massively important one — is retaining skilled legal counsel as soon as possible. If you’re a suspect in a criminal case, look to the knowledgeable Maryland criminal defense attorneys at Anthony A. Fatemi, LLC to help you protect your constitutional rights to the fullest extent of the law. Contact us through this website or at 877-986-5529 to schedule a consultation.

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