When is giving a cop consent to search not consent? When the consent is obtained as a result of an illegal detention. I recently spoke with someone who was arrested for Possession of Marijuana on the Comal River in New Braunfels.
The person was floating down the Comal in an inner tube with a group of several people. There was a cooler attatched to the tube in which this person was riding. A cop on the riverbank ordered the tuber to come over to where the cop was standing. The cop did not say why he had stopped the tuber. The cop simply asked if he could search the cooler. The tuber, no realizing that there was anything illegal in the cooler, gave the cop consent to search. Of course, a cigarette carton was found in a plastic baggy in the cooler, and the carton contained a joint of marijuana. The tuber was arrested. Now getting past the issue of whether or not the tuber was even in knowing possession of the marijuana, the first question is if the cop made a legal search.
Most people would assume that the search was legal because the tuber gave the cop consent to search. However, consent to search is not considered valid if the consent was obtained as the result of a cop illegally detaining someone. When the cop motioned for the tuber to come to the cop's location at the riverbank, and the tuber complied, the cop "seized" the tuber for the purposes of the Fourth Amendment. In order to legally seize or detain someone, a cop has to have some specific, articulable facts in his mind that would lead a reasonable man to believe that the person being detained might be engaged in a crime. Here, the tuber wasn't doing anything wrong.
So the cop's order for the tuber to come to the riverbank, and the detention that happened afterwards, were both illegal. Since the cop obtained consent to search the cooler during the course of an illegal detention, the consent to search is not considered to be valid, and the search that happened as a result is illegal. So, the marijuana should be excluded from evidence. In a Possession of Marijuana case on either the Comal or Guadalupe Rivers, don't assume that the State has a good case just because consent to search a cooler was given. First, you have to look at the facts surrounding the consent.