Actual Authority vs Apparent Authority to Consent to Police Searches
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- Опубліковано 23 сер 2024
- This video explains actual authority vs apparent authority regarding a consent search in criminal law and how the police use a person's consent to avoid the 4th Amendment probable cause search requirement. Visit www.gustitisla... for more information about actual authority vs apparent authority and criminal defense lawyers in Bryan-College Station, TX.
This video defines who has authority to consent to a police search and provides examples. It is the 2nd video in our series on consent to search and Fourth Amendment rights.
Other Videos in this Series:
1. What is Consent to Search in Criminal Law? ( • What is Consent to Sea... )
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This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals. The use of the Internet for communications with the firm will not establish an attorney-client relationship and messages containing confidential or time-sensitive information should not be sent.
About This Video:
In this video, criminal lawyer Stephen Gustitis explains the difference between actual authority vs apparent authority when the police request consent to search. The video also considers some simple examples of actual authority and apparent authority. The video is #2 in our series on consent searches and Fourth Amendment rights in criminal law. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 27 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including actual authority vs apparent authority to consent in criminal investigations. #actualauthority #gustitislaw #apparentauthority
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Thank you I’m young at age but knowing this material really helps in later life .
I’m very glad to help you. Thanks for your visit!
Be careful future criminal. It's very important to get to know your rights. Even when you're in the wrong. Especially when you're in the wrong.
Exactly what is needed. Not hearsay but actual info that is given by atty. Very informative videos. Thank you so much for posting.
You are welcomed, Joe. I’m glad I could help and thank you for watching!
Gustitis Law call me
I have friends who are felons and argue about not having rights. They say I lost my 4th. They say they have to consent. I tell them they dont have to assist the police in any way and remain silent. Ask for an attorney. Being a felon doesn't have anything to do with search and questions as long as you are not suspected of a crime you are free to remain silent and to not be molested by police and their over reach. The example I use is, felony money laundering vs felony drug possession. They both involved the movement of money illegally but the drug dealer lives in the bad part of town and drives a suspicious car and always gets pulled over and searched and all because he made 1 bad decision. Meanwhile the money laundering felon is driving a nice vehicle and lives in a beautiful home gets pulled over for speeding and is not questioned when stopped because money laundering isn't something a cop can really fish around for. He made millions and the pot dealer made hundreds. You're both felons when you have to check the box. You are equal on paper in my opinion.
Thank you for commenting on this thread. I appreciate your visit, as well!
Man i think you are a great lawyer.. I wish i knew a lawyer here in Charlotte NC!!!
I appreciate you watching the video. Thanks for your visit.
Great content!! Thanks for sharing all your knowledge in vedios . I have watched all your videos
Glad you like them!
Great content! Thanks for sharing Steve.
Thanks for watching, David!
What is you dont consent? Dont they have a way to call and get authorization?
@@wilfredorivera48 Hi Wilfredo. You need to re-ask your question. It's appearing under my comment instead being directed at the law firm
@@davidvincent-amazingcx2647 ok
Tks!!
What if a officer searches your car because he thinks u have drugs and without your consent find illegal substance a very very small amount .11237 and my lawyer thinks I should jus settle for probation,but the car was my dads and the stuff was in his keychain in a small bullet shape object should I jus take the charge because I was driven
The only suspicious activity was the area was Detroit and ghetto and he jus happen to see me pull out the liquor store from buying chips for my kids and pulled me out the car and searched the vehicle himself without my consent because I don’t have license do my constitutional rights matter in this situation
I don't know. Since I have not independently investigated the facts and law applicable to your case, it's impossible for me to answer your question.
Almost forgot. Recently SCOTUS ruled, in Rodriguez, that police cannot detain you on the roadside while they wait for a drug dog. Unanimous decision, authored by Kagan.
Almost certainly no police departments have been notified nor have any officers been individually notified of this ruling, and even if they had, it is a safe bet they would all ignore it.
How can I take advantage of this ruling, while handcuffed on the side of the road, with my trousers down (see below), without waving the Constitution at them or quoting SCOTUS? Because you know how they love that and my situation would go from bad to worse.
You keep your mouth shut on the roadside, you consent to nothing while the police do their thing, and then you raise the issue in court to suppress any evidence the police seized as a result of the illegal detention and search. The police ARE allowed to hold you for the drug dog, but only if they have reasonable suspicion to do so, and so long as the continued detention is reasonable under the circumstances. Every one of theses cases is different and must be evaluated under the facts specific to the case. The only bright line rule here is to remain absolutely silent and consent to nothing while the police are detaining you.
I have a question about a consent can someone give consent to the police and the homeowner is not home? And wouldn’t approve also was told by the person that he wasn’t there and that she didn’t live there is that legal? And does a consent form has to be signed to search his house? But the police got a consent to search her purse but not his house
The special education Steven hocking that he gave to specal education.
I don't understand your point here either.
What authorities and under what conditions do authorities have the right to search your safety deposit Box
If they have probable cause there is evidence of a crime inside the safety deposit box. They would also need a search warrant, unless they have consent.
"through suppressing the piece of doweling that constitutes my 22210pc felony charge I could weigh heavier on the entrapment issues in the scenario...like what I was doing with a piece of doweling at my basecamp in the first place, and how deputies' denial of services regarding 646.9 issues over the years are how they coerced/induced me into violating the code???"
This sounds like an important issue to speak with your defense attorney about.
If there’s a robbery the car doesn’t belong or own the car, does probable case give the authority to search the car?
Based on what you described, I am sure there are more facts in addition to that. Probable cause is a low standard of proof. Defense lawyers should regularly challenge these probable cause searches. Thanks for visiting.
Does a motion to supress or a motion to dismiss need to be filed prior to the preliminary hearing ?
Since Texas does not conduct preliminary hearings, I don't have experience with suppression issues, etc., at that stage of a case. I wish I could be more help.
Do. People on probation when being pulled over by officer have need resonon ot cause to stop and search for no reason even if they are a 4th right waver
You should contest ALL searches, whether you are on probation or not. Good luck and thanks for visiting.
Hello sir, I just found your channel and I have your website open, lots of good stuff there, I see. I haven't sifted through all your relevant videos yet. I have a couple of questions that you have likely already answered but let me put them on the table here.
I am in considerable legal trouble here in New York state due to my own mouth. Next time they stop me - and they will, I'm a target here - I will refuse to answer any questions, and I will not consent to any searches.
Now, you know they will pull me out of the car at that point. They will claim they have the right to pat me down for weapons. If so, what would be the scope of a "pat down" as opposed to a search?
If I have an arrest record - not convictions, but arrest - for possession of drugs, does that in itself give them probable cause to search myself and my car?
The last time I got stopped, it was the NY State Police. I foolishly consented to a search after they pulled me out of my car. So they handcuffed me, opened my jacket, took my boots off, and pulled my trousers down. In public, on the side of the road, thirty degrees out. I am 66 years old and I don't deal well with the cold. They left me standing out on the roadside like that for almost an hour while they searched the car.
What is your legal opinion of that treatment?
Sorry you had to experience this! But once you consented, all bets were off. When you consent, you eliminate any probable cause requirement. The only possible issues in consent cases is whether your consent was voluntarily and whether the police exceeded the scope of your consent. Your record would not be probable cause, all by itself. But could contribute to a cop’s probable cause development.
Can drivers legally give consent to search your car if they are not the registered owner of that vehicle?
Yes, provided they have had control of the vehicle. That comes under the "equal access" theory of actual consent
How do we find a young NEW employement attorney?
Experienced attorneys dont want to take hard cases.
Google "employment attorney" and the community or region. Even young attorneys won't take cases with bad facts. But good luck and thanks for your question.
Is it legal for police to command you to "Turn out your pockets" for simply walking past them on a public street or sidewalk?
What about someone that is a felon, on parole, or probation?
I saw this happen in Jerseyville, IL.
It possibly can if the police have reasonable suspicion the person may be armed or possessing contraband.
Is it legal for police to orchestrate a "Bomb Threat" on a business to gain warrantless entry to private areas?
Local police had someone to call a business and say that there is a bomb there.
Being a responsible business owner, the owner called 911 and reported it.
Police showed up with drug dogs. Police refused to show certification of dogs.
Police detained all persons withing and searched them.
Police went into building with drug dogs.
Police found no drugs (or bombs).
Why do I think the local police orchestrated this?
Because the local police had done set-ups similar to this in the past and always the local judge went along with it.
One time, sending someone in to unplug an electric clock and plug it in 10 minutes later.
On a very busy night, no one saw this and the owner was arrested and fined for being open past closing time.
Another time, police sent in a bartender from a competitor's bar to refuse to leave at closing time.
The police were called to take her but the owner was arrested and fined instead.
The bartender asked if she was free to leave and the the cop said "Yes".
The cops never spoke another word to her before or after releasing her.
Another incident was when local police parked a blacked out police car behind the owner, in the street.
There were no lights on on the blacked out car.
There were several other marked cars around with all lights on.
There was no one in the blacked out car, but you could imagine what charges would have happened if the owner would have hit the car.
Local police refused to move the blacked out car and effectively detained the owner and his wife.
There were 22 years of incidents like these.
Usually if the business owner or employee called the police in an emergency, the police would not show up at all.
This is the same town where police killed a 17 year old boy for carrying a Bible on a public sidewalk and saying "I want Jesus". Then lied on their police reports. Google Roger Holyfield.
The local police chief refused to take written complaints for misconduct on 3 ocassions from that owner.
The Holyfield case does not end with the boy being killed. The boy's mother was an employee of the above business. I believe, the mother's house was burned down by the same local cops, for being involved in suing the town, killing her other son and little granddaughter. The local fire chief said the fire was started by an extension cord. Knowing how corrupt that town is, I would not believe any of them. They all cover for each other. The State Police, FBI, DOJ, and DEA all refused to investigate the murders of 3 people by Jerseyville, IL cops. The local judge refused to render a verdict and forced the family to settle for pennies. Why did the local judge even have jurisdiction? Shouldn't that have been a federal 1983 case.
I have no personal knowledge of any facts you listed. Consequently, I am not in a position to answer your questions.
If I was sleeping in my vehicle, and the officer states in his police report that he opened my door and then I woke up, meaning my door was unlocked and he opened it without my consent as I was asleep. Is this apparent authority that he can open my door? How do I know he didn't drop things in my car while I was sleeping since he could enter my car while I was still sleeping?
When the officer walked up to your car, he didn't know whether you were asleep, dead, or suffering an overdose or stroke. Under those circumstances the cop does not need your consent. They can open the door pursuant to the community care-taking function doctrine.
If I am driving my moms car, and I don't own it, or mutually use it I was just using it this one time to help her with a move wouldn't I be lacking actual and apparent authority?
No. If you are driving the car, the officer has reason to believe you had actual and apparent authority to consent to a search.
"Apparent authority" as you describe it doesn't seem like it would be too hard for a crooked cop to set up.
What if a person ( family) member who has Downs syndrome allows police into a home and police ask if they can search. And the person with the disability says yes.
Can the police search and would "evidence " be surpressed?
I don't know. It depends whether the person giving consent has the competency to provide consent. This issue would need to be litigated during a motion to suppress hearing. The court would then make a ruling on the search and the admissibility of the evidence.
Can you do a video on Unconditional Checkpoints
Sobriety checkpoints, also called DUI checkpoints, are temporary roadblocks that law enforcement officers use to screen motorists for drunk driving-related offenses. Thirty-eight states in the country utilize sobriety checkpoints, while twelve states do not. Some states prohibit the use of sobriety checkpoints, including Texas. These states have concluded that sobriety checkpoints violate the United States Constitution’s prohibition against unreasonable searches and seizures and deprive drivers of their due process rights. For states that permit the practice, the legal basis for a DUI checkpoint is typically grounded in the federal constitution in addition to the state constitution. Some states, like Hawaii and North Carolina, have enacted statutes that explicitly provide for DUI checkpoints.
Checkpoints are simply another way for police to stop motorists to investigate potential criminal activity. If you have been subject to a checkpoint stop, make sure you discuss these important facts with your criminal defense attorney.
@@GustitisLaw they backed off when they realized I knew my rights very well. I got them off of me with the 1st - 6th Amendments. Somehow, that worked. Not saying it would every time. So, thanks.
@@GustitisLaw Mississippi here. Everything unconstitutional is legal here.
Unconstitutional *
You wanted comments, please address this or forward it to someone that can.
I’m a busy lawyer with a vibrant law practice. Three days waiting for an answer is not unreasonable. If you don’t like the delay, you are free to go somewhere else.
If my neighbor called the cops for a domestic violence but the cops don't hear nothing and the I go outside and lock the door behind to my house can the cops get your keys and open your door to let them selfs in to your lock home to search
If they have reasonable suspicion that someone may be in danger or may be hurt, then yes. That is called an "exigent circumstance" and it's an exception to the warrant requirement.
I have a question what if a girlfriend not wife turns your cell phone in after she takes it from you with out your knowledge then turns it over to authorities can they use that against you or have any probable cause at that point to even get a warrant? Ty for any information on this subject.
Possibly. It depends what State you are in. In Texas, for example, we have an exclusionary rule that says any evidence obtained from illegal activity is inadmissible. In this case, you could make the argument the phone was stolen from you. Therefore, any evidence obtained is inadmissible. Buy beyond that, the police would need to get a search warrant to search the phone. Information provided by the girlfriend could be used to develop probable cause for a search warrant.
@@GustitisLaw Ty n it's Ohio love watching your educational videos very informational
@@jackiedelong6564 Thank you very much!
Can they come kick my door with out or wrong door
I have no idea what you are actually asking me.
Wouldnt it be harrasment for being pulled over while walking just because the offficer knows your a 4th right waver. And searches you with no reason but claims he juat stoped you for a probation check but never ran your name to confirm you r on probation yet proceeded with search
It certainly could be. What does your criminal defense attorney think about the case?
Case is yet to be picked up by da
Maybe that’s a good sign. Good luck!
Hi Mr Gustitis!
Hello. Do you have a question? Or did you simply want to say hi?
@@GustitisLaw just wanted to say hello!
@@katherinegriswold2471 Hello, Katherine.
Can my wife give consent without me at home being accused for possession of a thing?
If your wife has authority to access the area that she consented to, then yes she can.
Hey I am dealing with a case now where the police came to my home looking for my sons dad when they already had him in custody but some how they new he had just came from over here seeing his son. It was 2 different police districts one was the cPD which is Cincinnati police department and it was forest park police department homicide detectives which was a different county so they where out of district. cPD was my district my babies father never told me he was wanted. The police knocked on my door after he left me and my sister kept yelling who is it they never stated it was the police they just said a name I was in the middle of feeding my 1 year old so I told my sister to open the door and see who it was when she opened it , it was like 6 officers they asked who was Vincent to me which was my sons dad and asked me does he has any belongings here I said no which was true I stated he does not live here he’s not on my lease he just stop by and visits they started barging there way in checking my room for his belongings and telling me I cannot move falling my kids around with there hands on there guns remind u I have a 5 year old and a 1 year old baby they stated I can’t touch anything in my house I asked them to leave if they could not present no search warrant they refuse to leave my home I was recording instead they told me to leave my house they where shaking out my baby car seat hoping to find what ever they where looking for I asked was I being detained they said no they made me and my children leave and while there doing that one of the male officers pushed me out the door trying to rush me out I didn’t catch that due to him pushing me so all you can hear is me saying don’t put your fucking hands on me on my video they denied me of any of my belongings so they made me and my 2 babies leave the promises so I left I had no choice at that point I didn want them to arrest me so my sister stayed behind in the hallway I live in a apartment building they claim they froze the search till after they get a search warrant and after they did all that to me so come 2 hrs later my sister called me and said there searching I said ok cause I had absolutely nothing to worry about I didn’t commit any crime so after all this they leave the search warrant on my stove of what they where looking for they where looking for a 9mm handgun that my sons dad supposedly purchased that was in a murder 🤦🏽♀️ so they didn find that in my house but what they did find was a 380 and some drugs which the drugs they said they found was listed 2 baggys of green leaf substance and 2 baggys of crystal lining I have no clue what that was so they charged him with the gun that day came back and charged me with the drugs 2 days later I was unaware this was even hidden in my room but my baby dad want admit that there his at first I thought they planted it but he said they where his and told me not to say anything due to these charges I got 2 child endangerment charges they have took my kids put them in foster care I spent a month in jail I bonded out and wen I got out I found out they ignored the drug charges June 1 next day they picked them back up and indicted me i just don’t no what to do please.
You need to hire your own defense lawyer to investigate and review all the evidence in the case. After the evidence review the lawyer will be positioned to give you advice about what to do. Until then remain silent and communicate with NO ONE about the case except your attorney.
Can a wife give consent even though the accused is not present at home?
How to contact you???
My contact information is in the "About" section.
So, apparent authority dictates that a robber can break in, plant drugs and other illegal items.. secretly call police or put in a fake tip their self or have a friend do it ; or whatever the means of police arriving... the police arrive , knock on door and robber opens pretending to be the wife (while true owners are out of town) robber lets the cops in and secretly sneaks out the back and leaves the area with her revenge now put into action.. seems to good to be true
That's correct. If the police reasonably believe the person had authority, the consent is valid. However, if you can prove the evidence was put in the house illegally, the drugs would not be admissible. But I bet your hypothetical has never happened.
@@GustitisLaw I suppose it’s a long shot but how do police prove what they do or do not believe someone has reasonable authority
@@DarronMoe There are unlimited ways to do this. However, the trial judge will make a determination whether the police testimony is credible or not.
That could her drugs she put there to set you up if you wasn't there> How about that??
How about that? I guess anything is possible.
@@GustitisLaw Where u out of again., Man i wish you here in Charlotte NC area!!!