Criminal Procedure for the Criminal Justice Professional 11 th Edition John N. Ferdico Henry F. Fradella Christopher Totten Prepared by Tony Wolusky Consent Searches Chapter 9

Consent Search Exception to the Warrant Requirement A consent search occurs when a person voluntarily waives his or her Fourth Amendment rights and allows a law enforcement officer to search his or her body, premises, or belongings. Does not require a warrant Does not require probable cause

Assessing Voluntariness Voluntariness is based on the totality of circumstances. The prosecutor must show by a preponderance of the evidence that the consent was voluntary.

Force, Threats of Force, and Other Threats Consent to search given in submission to force, threat of force, or other show of authority is not voluntary. Despite the coercive nature of an initial confrontation, an officer may still obtain a valid consent to search if the consent itself is obtained without coercion.

Submission to a Fraudulent or Mistaken Claim of Authority A person’s submission to a false assertion of authority (such as saying there is a warrant when there is not one) does not constitute a voluntary consent.

Misrepresentation or Deception Consent to search obtained by misrepresentation or deception is not voluntary, except that a person’s misplaced trust in an undercover police agent will not alone invalidate an otherwise voluntary consent.

Arrest or Detention Consent is determined by the totality of circumstances, even if the person is under arrest or detained. Arrested/detained people are viewed as more susceptible to coercion. If the arrest is illegal, the search is generally also considered illegal (“fruit of the poisoned tree”).

Knowledge of the Right to Refuse Consent The Schneckloth Rule—Knowledge of the right to refuse consent is only one factor among others to be considered in determining the voluntariness of a consent search.

Informing Suspects That They Are Free to Go The Fourth Amendment does not require that a lawfully seized person be advised that he or she is “free to go” before the person’s consent to search will be ruled voluntary.

Clearness and Explicitness of Consent Voluntary consent to search may be given in writing, orally, or by a person’s conduct so long as the expression of consent is clear and unequivocal.  Consent need not be expressed in words but may be implied from a person’s gestures or conduct.

Notification of Counsel A defendant has no Sixth Amendment right to counsel until after the initiation of adversarial judicial criminal proceedings. Though neither the Fifth Amendment nor Miranda require counsel to be notified before consent to search is obtained, a person in custody who is asked to provide consent should be given Miranda warnings.

Individual Factors/Personal Characteristics Voluntariness of consent may be affected by the physical, mental, or emotional condition and the intelligence or educational level of the person giving consent. These personal characteristics alone, however, are generally not enough to render consent involuntary.

Voluntary Production of Evidence If a person voluntarily produces incriminating evidence, without any attempt by police to obtain consent and without coercion, deception, or other illegal police conduct, there is no search and seizure, and the evidence is admissible in court.

Consent Merely to Enter A person’s consent to an officer’s request to enter his or her home does not automatically give the officer a right to search. There is a vital distinction between granting admission to one’s home for the purposes of conversation and granting permission to thoroughly search the home.

Initial Consent vs. Subsequent Consent Even if police are granted consent to conduct a search after being granted consent to enter a residence, such consent is limited to search on that particular occasion. Consent to enter and search on one occasion does not automatically translate into consent to enter and search premises on a subsequent occasion.

Area of Search The scope of a consent search depends on what the typical reasonable person would have understood by the exchange between the officer and the suspect. If an officer asks for and obtains consent to search a specific area, whether in a place or on a person, the officer is limited to that specific area. If the search goes beyond that area, evidence seized is inadmissible in court.

Time of Search A person giving consent to search may place a time limitation on the search. Also, a court may infer a time limitation on the person’s consent if the role or status of the person changes significantly (e.g. from that of concerned spouse to that of murder suspect).

Object of Search If the consenting person places no limit on the scope of a consent search, the scope is generally defined by its expressed object. Law enforcement officers should confine their search to only those areas where the object for which they have consent to search could possibly be located, taking into consideration the size, shape, and character of the object.

Revocation of Consent The person giving consent to search may revoke or withdraw that consent at any time after the search has begun, although such revocations of consent should be clear and unambiguous.

Who May Give Consent?

General Guidelines In general, the only person able to give a valid consent to a search is the person whose constitutional protection against unreasonable searches and seizures would be invaded by the search if it were conducted without consent.

Third-Party Consent under Actual or Apparent Authority Third-party consents may be valid. If a person establishes a reasonable expectation of privacy in property, another person may not consent to a search of the property. A person may specifically authorize another to consent to a search of the person’s property. Consent to search may be obtained from a third party whom the police, at the time of entry, reasonably believe to possess common authority over or other sufficient relationship to the premises or effects sought to be inspected.

Specific Types of Third-Party Consent Courts balance people’s reasonable expectation of privacy against the actual or apparent authority of the third parties in common types of relationships including: Parent-child Hotel management-guests Hosts-guests Landlords-tenants Employer-employee School officials-students Spouses