法律英語導讀(40)

21. If I Agree to Open My Door to Talk to a Police Officer, and the Officer Enters Without My Permission and Searches, Is the Search Valid?

　　No. Merely opening the door to a police officer does not constitute consent to entry and search. Thus, whatever such a search turns up would be inadmissible in evidence. Of course, if contraband or evidence of a crime is in "plain view" from the doorway, the officer may seize it. （See Section IV, below.）

　　22. Can I Consent to a Police Search of My Living Room But not My Bedroom?

　　Technically yes. Where only limited consent is given, that limitation is supposed to be honored. But if in the course of making their limited search the police see evidence of illegal activity elsewhere, they may properly search and seize it. Also, once in a home, the police are very skilled at obtaining consent from the homeowner to expand the scope of the search.

　　Case Example 1: Officer Zack asks permission to search Mike’s residence for marijuana plants. Mike agrees. Officer Zack proceeds with the search and goes into Mike’s desk and reviews some of the documents he finds there.

　　Question: Is the search valid under the Fourth Amendment?

　　Answer: No. Searching the documents was illegal because Mike only agreed to the limited search for marijuana plants, and there were obviously no such plants in the desk or the words Officer Zack was reading.

　　Case Example 2: Officer Zack asks, and Mike agrees, to allow a search of Mike’s home for narcotics. In the course of the search, the officer finds a closet containing an illegal weapon, which the officer seizes.

　　Question: Is the search valid under the Fourth Amendment?

　　Answer: Yes. The weapons were readily seen in a place where narcotics might be found.

　　23. Is a Search Valid If the Reason I Consent to It Was Because I Felt Intimidated by the Presence of the Police Officer?

　　Yes. Many people are intimidated by police officers, and may even perceive a request to search as a command. However, so long as an officer does not engage in threatening behavior, judges will not set aside otherwise genuine consents.

　　Extreme Case Example: The owner of a massage parlor agrees to allow police officers to search her business premises. At the timethe owner consents, she has been handcuffed, is in the presence of seven male police officers, the officers had already physically subdued and pointed a gun at an employee, the officers had threatened to tear up the premises and the owner was of foreign descent and unfamiliar with the American criminal process.

　　Question: Is her consent valid?

　　Answer: Yes, at least such was the result in State v. Kyong Cha Kim, 779 Pacific Reporter 2d 512 （Montana 1989）. Despite the outcome of this case, it is possible that another judge in another jurisdiction might find this type of police conduct so coercive or threatening as to make the consent involuntary.