Although the Fourth Amendment acts as a safeguard against unlawful search and seizures, the State can still use evidence it finds against a defendant in a consensual search of their property if the search is sufficiently detached from an illegal search that purges any unconstitutional taint. Accordingly, such a search is valid if the search was voluntary and an independent act of freewill. In order to determine whether a search was an independent act of freewill, the Court analyzes several factors, none of which are controlling by themselves:
- the temporal proximity of the illegal conduct and the consent,
- the presence of intervening circumstances, and
- the purpose and flagrancy of the initial misconduct.
In US v. Montgomery, the Defendant was stopped by a police officer and frisked during a traffic stop in front of the Defendant’s house. As the officer frisked the Defendant, the Defendant pushed the officer’s hands away from his pockets after the officer felt a bulge. The Defendant revealed that the bulge was cocaine, prompting his arrest and Mirandizing. The Defendant, eventually, consented to a search of his house. During the search, the Defendant was allowed into the house to obtain medicine and made several requests to officers on scene for his cell phone to erase some “naked pictures” that he did not want his father to find. The Defendant consented to one of the officers using his phone to delete the pictures, but the officer found what appeared to be child pornography. The Defendant was later indicted for possession of child pornography.
At trial, the Defendant claimed that the frisk and seizure of cocaine that led to his arrest was unlawful, which tainted his consent for the officer the see his cell phone. Nevertheless, the Court held that even if the frisk and seizure were illegal, the Defendant’s several voluntary and independent acts of freewill relieved the search of the Defendant’s phone of any unconstitutional taint, specifically, the Defendant asking several times to see his cell phone so that he could delete the naked images, and the Defendant consenting to a search of his phone after being Mirandized. Nothing was presented at trial that showed the police officers even wanted to search his cell phone. In the words of the Court, “[The Defendant] broached the phone search himself.” Moreover, the Court also cited several intervening events and factors establishing that the Defendant’s “consent was sufficiently detached from the arrest to purge any taint” such as the officers reading the Defendant his Miranda rights, the Defendant’s criminal record, and the Defendant going into his house to retrieve his medicine.
Yet another reason why we advise NEVER GIVE CONSENT TO SEARCH, period.
