Opposing grants of permission for search by police Hypothetical situation - a police officer knocks on the door of an apartment shared by two people. Both are home and answer the door. The officer asks for permission to enter and conduct a search. One person says "no, you do not have consent or permission to enter" while the other says "yes officer, please come in". What happens? Does explicit denial or permission take precedent?
Under Georgia v. Randolph, 547 U.S. 103 (2006) in such a case the police may not lawfully enter without a warrant, and if they do enter, any evidence found will not be admissible. The court in Georgia v. Randolph said: [N]othing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection. We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident. However, the police may talk to either or both occupants at the door, and this may provide sufficient reason to obtain a warrant. If police determine that someone in the residence is in danger, they can enter on that basis, and anything in plain view may be treated as evidence. Further consider Fernandez v. California, 571 U.S. ___ (2014) In that case one occupant of an apartment denied consent for police to enter. But the police had probable cause to arrest him, and did so. An hour later police returned and got consent from the other occupant, who may also have been a victim of domestic assault by the first occupant. The consent search was upheld, as the objector was no longer present (being then detained) when the police asked to search. So the holding about divided consent applies ONLY if the objector is physically present. If only one occupant is present, that occupant may consent to a search, even if the police know very well that the other lawful occupant would have objected. Interestingly, in Fernandez it appears that police had ample probable cause and could easily have secured a warrant, but chose to proceed on the basis of consent instead.
If the police can get a warrant from a judge confirming that they have probable cause, they could, and that finding would probably be confirmed in a subsequent suppression hearing alleging that the warrant was issued without probable cause. But, it would be unlikely that a judge would issue a warrant that covered multiple apartments if there was not probable cause to indicate that evidence of the crime was in a particular apartment. I could imagine a situation where a judge might do so (e.g. the evidence was strapped onto a rat that had the ability to move from apartment to apartment in a wing of four adjacent apartments in the same wing of the building through the crawl space in the ceiling), but in any reasonably normal fact pattern, a judge would be unlikely to grant a warrant in a situation where probable cause had not narrowed down the particular apartment where the evidence was believed to be located due to insufficient investigation by the police.
The Supreme Court has said that "when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given".1 This needs to be "clear and convincing" proof.2 The "clear and convincing" standard is higher than simply "more likely than not" or "preponderance of the evidence".3 It has been equated with "highly probable".4 In your hypothetical, the prosecution failed to prove that it was more likely than not that consent was freely and voluntarily given. They are far from meeting the "clear and convincing" standard that is required. The evidence resulting from the search would be excluded. I also recommend gracey209's answer, which explains why this hypothetical is not realistic, and describes many other factors that go into the determination of whether a search is reasonable -- the touchstone of the Fourth Amendment is reasonableness, not consent. 1. Bumper v. North Carolina 391 U.S. 543 (1968) 2. State v. Danby, 11 Ohio App. 3d 38 (1983): "Accordingly, a warrantless search based upon the consent of the defendant is valid if his consent is voluntarily given. [...] Furthermore, the degree of proof constitutionally required is proof by "clear and positive" evidence. [...] In construing the phrase "clear and positive" in terms of evidentiary proof, we observe that several courts have held that it is quantitatively equivalent to proof by clear and convincing evidence." 3. Calderon v. Thompson 523 U.S. 538 (1998) 4. Colorado v. New Mexico 467 U.S. 310 (1984): "Last Term, the Court made clear that Colorado's proof would be judged by a clear and convincing evidence standard. [... W]e thought a diversion of interstate water should be allowed only if Colorado could place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are highly probable."
Indirectly, no the wording of the caution is "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." It is illegal to question someone if they have asked for legal advice. so if you ask for a solicitor they are not allowed to question you, and you cannot (by definition) fail to answer their questions if they're not allowed to ask them. Reference from https://www.gov.uk/arrested-your-rights/legal-advice-at-the-police-station "Once you’ve asked for legal advice, the police can’t question you until you’ve got it - with some exceptions."
Since the incident was on private property (inside a building), a person does not have the same right to be there that you would have on the street outside the building. Yale police therefore can legally make a determination whether a person is trespassing (for example, by asking for identification), especially when there is an allegation that a person is trespassing. A law holding a person criminally or civilly liable for reporting their &quot;suspicions&quot; to the government without e.g. &quot;reasonable suspicion&quot; could easily run afoul of the First Amendment.
In general, you do not have civil recourse against the government for (lawful) legal process that you are the victim of. "Counterclaim" would only be applicable when A sues B, and B makes a counterclaim against A – the police don't sue you, they arrest you, and the prosecutor prosecutes you (or decides not to). If the police beat you up, you could sue them for violating your rights, under what is known as Section 1983. Given the scenario you describe, this comes closest to involving false arrest, meaning that there was no probable cause for arrest. Otherwise, the police have immunity for their actions. But if there is a legal arrest warrant, there is probable cause (existence of probable cause is the standard for issuing an arrest warrant), so no claim against the police will succeed. I am leaving out the anomalous concept of an unlawful arrest warrant, where a judge issued an arrest warrant but there is in fact no probable cause. Such a case would be covered by Section 1983, where either the judge or the swearing officer (or both) violated your rights.
I can't prove a negative, but it seems quite clear from my research that providing name and badge number is policy, not law. i.e. Many departments have a policy that their officers will provide name and badge number on request, but the punishment for failure to do so would be at the employment level not the legal level. This site has a fairly good selection of various police department policies I will note that Massachusetts appears to be an exception as mentioned by jimsug in his comment to another answer, they do require police to carry and show ID upon legal request (I did not look up what a "legal request" is)
was the idea that all searches and seizures, reasonable or otherwise, require a warrant? No. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. This means that unreasonable searches are prohibited. A prohibited search can't require a warrant because the search is prohibited. If a warrant was issued for an unreasonable search then the warrant was issued in error.