If you were arrested and searched in New York City, it is highly likely that evidence against you that was seized during the search will become a hotly contested issue as your trial proceeds. If it is the kind of evidence that may make or break your case, your attorney will put significant effort into persuading the judge that the evidence was obtained improperly and should not be used at trial. The prosecution, on the other hand, will argue that the evidence was properly obtained and should be admitted against you.

One common argument brought up by prosecutors is that the defendant consented to the search. There are two issues for the judge to decide here: whether the consent was genuine and whether the police had lawful authority to ask for the search in the first place. If the police officers had no right to ask for the search, the evidence cannot be admitted, even if the defendant genuinely consented to be searched.

The prosecutors must meet the burden of showing that the police search was legitimate. This means that the search was made based on a valid warrant, valid consent, incident to a lawful arrest, or that there was no search and the evidence was in plain sight when the police officers saw and obtained it. The prosecution usually deals with this hurdle by having the police officers testify.

In cases where the prosecution argues that a defendant consented to be searched, the law requires that the consent be voluntary and genuine, not a result of explicit or implied coercion or intimidation by police officers. Courts will examine all the circumstances surrounding a search to determine if there was genuine consent. Factors may include the number of police officers present and their demeanor, as well as the defendant’s familiarity with police, as well as whether the defendant was informed that he may refuse to consent (even though this information is not mandatory). Courts will also consider a defendant’s later retraction of consent.
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The court will also inquire into the issue of whether the police officer had the right to ask the defendant to consent to the search in the first place. There are laws that govern when a police officer is able to do so – an officer cannot just walk up to a random pedestrian and ask, “Is it alright if I search you?”
New York law authorizes a police officer to forcibly stop and detain a person when the officer has a reasonable suspicion that this person has committed or is about to commit a felony or misdemeanor. When thus detaining a person, the officer has the right to question and to search. A police officer may also frisk a person if he or she reasonably believes that the person may attack.

In cases where the defendant granted consent to be searched after police questioned him and led him to believe he was suspected of a crime, but they did not have a reasonable suspicion of criminality, courts have ruled that consent was not genuine and the evidence obtained from it cannot be used.