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‘Consent’ Invalid After Police Accusation

A Martinsville Circuit Court suppresses drug evidence found in the car of a woman whose husband, a former police informant, alerted police who stopped the car; in view of the police accusation that the woman was transporting illegal drugs in her vehicle, no reasonable person in the woman’s position would have felt free to withhold consent.

The woman allegedly was unaware that her husband had served as a paid informant prior to their marriage. The couple was having marital problems and the woman claimed her husband had set her up.
The constitutionality of the stop of defendant’s vehicle depends upon whether the tip provided by her husband, a known informant who had proven to be reliable in the past, sufficed to establish reasonable suspicion. The court finds that the stop of defendant’s vehicle was constitutional on the ground that, as a result of the informant’s tip, Lt. Thomas had a reasonable suspicion that criminal activity was “afoot.”

That the stop passes constitutional muster does not end the inquiry, for Lt. Thomas conducted a warrantless search of the defendant’s vehicle.

When the police announce to a suspect that they have received information that the suspect is engaging in specific criminal activity, that factor is significant in determining whether consent to search was voluntarily given. In McGee v. Commonwealth, 25 Va. App. 193 (1997), police approached a man who matched the description of a man provided by an informant, and told him they had received information that the defendant was selling drugs. The Court of Appeals held that the defendant’s consent to search was the result of an illegal detention. The appellate court said that when the police expressly inform an individual that they have received information that the individual is engaging in criminal activity, the police convey a message that compliance with their requests is required and the failure to cooperate would only lead to formal detention. According to the McGee opinion, when confronted with an accusation from police, such as “we know you are selling drugs from this location, let us search you,” no reasonable person would feel free to leave.

In the case at bar, the court finds the commonwealth has failed to prove that defendant’s consent was voluntary. The court is of the opinion that, in view of the officer’s accusation that the defendant was transporting illegal drugs in her vehicle, no reasonable person in the position of defendant would have felt free to withhold consent.

Motion to suppress is granted.

Commonwealth v. Johnston
(Greer) March 22, 2011; Martinsville Cir.Ct.; Philip G. Gardner for defendant; Rachel Madden, Ass’t Comm. Att’y. VLW 011-8-054, 5 pp.

VLW 011-8-054

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