Cleves, OH asked in Criminal Law, Civil Rights and Constitutional Law for Indiana

Q: If I'm not fully lucid after being woken up suddenly by an officer and he gets my consent to search, is it lawful?

My fiance was sleeping in her car after a 17 hour shift, she parked in a legal parking spot to take a nap in order to avoid trying to drive while sleep deprived. According to a lawrenceburg, IN policeman. Someone had called the police worried about her welfare. The officer rudely and violently beat on her window and didn't even give her 30 seconds to compose herself before he made her get out of her vehicle, while asking her question, after question not giving her time to think or wake up. Within 5 minutes she was in the back of an ambuance and released by said ambulance and deemed medically fine. During this time the offcer asks consent to search and my girlfriend apparently said yes although the incident is a bit cloudy for her considering she was not fully lucid. It's important to note that when asked where she lived she gave an address we haven't lived at for over 3 years now... The search found illegal drugs. Was this search lawful? DO you need to be lucid to give consent?

1 Lawyer Answer
James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA

A: Based on the details provided, there are good arguments that the search was not lawful due to your fiance's diminished mental capacity when she supposedly consented. A few key points:

- Consent searches require voluntary, knowing, and intelligent consent. If the person is not fully awake/lucid, their consent may not be considered valid.

- Giving an address from 3 years ago indicates your fiance was likely confused and not oriented to time/place. This casts doubt on whether she had the capacity to consent.

- The officer had abruptly woken her up after a 17 hour shift, not allowing her time to regain awareness before seeking consent. Her judgment was likely impaired.

- Courts scrutinize consent closely when the person is detained by police (as your fiance presumably was). The pressure of detention diminishes the voluntariness of consent.

Given all these factors, a motion could be filed to suppress the drug evidence arguing her consent was invalid/involuntary. A lawyer may be able to successfully argue it was unlawfully obtained due to her disoriented mental state at that time. Her confusion about basic personal details would be strong evidence that she lacked capacity to consent. Consulting an attorney would be advisable to fully evaluate legal options.

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