Motion to Suppress Evidence: Consent Search

The State is required to prove two elements during a hearing on a motion to suppress evidence, where the issue is one of consent. First, the State must prove by clear and convincing testimony that consent was freely, knowingly, and voluntarily given. This evidence should include proof that the defendant knew that he or she had the right to refuse to grant consent for the search. This can be shown through a written consent to search form, video evidence, or direct testimony from the police officer. The proofs only require knowledge to refuse consent on the part of the defendant, not that the police actually informed the defendant of this important right.

The second element of proof in the motor vehicle context is the requirement that the police justify the reason they sought consent to search in the first place. The request must be based upon a reasonable and articulable suspicion that evidence of a crime or contraband could be found within the motor vehicle. This can be proven through direct or circumstantial evidence. The conclusions made by the officer at the time of the request for consent must be based on a totality of the circumstances. The information available to the officer and the rational inferences to which they create must lead the officer to suspect that criminal evidence exists in the vehicle. Absent clear proofs on both of these issues, the incriminating evidence that was obtained through a consent search must be suppressed.

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