Chapter 8: Investigative Constitutional Law Consent LawTech Custom Publishing, Inc. Copyright 2010

Chapter 8: Consent Searches Learning Outcomes Learning Outcomes  The general rule for consent searches and the Fourth Amendment.  Timing of the request for consent during various investigative activities.  Revoking and limiting consent at the will of the consenter.  Who has authority to consent, including special problems with apparent authority, husband-wife, landlord-tenant, hotelier-guest, and third-party access issues.  The requirement of “voluntariness.” What makes consent involuntary, including illegal detention or arrest, threats and claims of authority. Investigative Constitutional Law

Chapter 8: Consent Searches Learning Outcomes (Continued) Learning Outcomes (Continued)  Whether or not a police officer must advise the person of the right to refuse consent.  Examples of implied consent.  Scope of activity during a consent search. Investigative Constitutional Law

Chapter 8: Consent Searches General Rule General Rule  The Supreme Court has strongly endorsed consent as an established exception to the warrant requirement, for several reasons.  In situations where an officer cannot justify a non- consensual search, the choice may be between attempting to obtain consent for a search and letting a dangerous or guilty offender walk away.  Consent is one of the established exceptions for constitutional warrantless searches. Investigative Constitutional Law

Chapter 8: Consent Searches Consent as an Independent Source Consent as an Independent Source  Not only is consent a viable option when there is no other way to justify a search, it can also be an alternative, independent justification for a search that is believed to be justified by an- other exception (or even a warrant), in case a reviewing court finds fault with the other basis for searching.  (Consent can provide the “search-and-seizure insurance” of an independent source for searches that might be found unreasonable on other grounds.) Investigative Constitutional Law

Chapter 8: Consent Searches Requesting Consent Requesting Consent  Because the act of requesting consent is not itself a search or a seizure, it can be done without any suspicion of wrongdoing. It would be sufficient for Fourth Amendment purposes that a police report showed that in the course of lawful activity, the officer asked for consent, and it was freely given.  During Consensual Encounter: It is permissible during the course of a consensual encounter for officers to request consent to search, as indicated in Florida v. Bostick and US v. Drayton.  During Detention: The mere fact that a person is lawfully detained on the basis of reasonable suspicion does not automatically permit any search activity. Consent may be obtained during a lawful detention. Investigative Constitutional Law

Chapter 8: Consent Searches Requesting Consent (Continued) Requesting Consent (Continued)  After Arrest: Police are not prohibited from asking an arrested person for consent to search. Although it is sometimes thought that the stress of being under arrest would cause consent to be coerced, the fact that a person is in police custody does not, in and of itself, make his consent involuntary.  For Entry and Search: Consent is a valid and advantageous means of making lawful entry into and searching homes.  Evidentiary Issues: Whenever possible, law enforcement officers should try to preserve affirmative evidence of consent on tape or in writing. Investigative Constitutional Law

Chapter 8: Consent Searches Conditions and Revocation of Consent Conditions and Revocation of Consent  Because an individual has the right to withhold consent completely, s/he also has the right to give a limited or a conditional consent, and has the right to revoke his or her consent at will. Authority to Give Consent Authority to Give Consent  As a general rule, all of those who share common access to an area can consent to its search. No one may consent to a search of places where someone else has exclusive control and access.  Apparent Authority: Police may rely on apparent authority for consent to search, even though it may later be determined that the person had no right to consent to the search. Investigative Constitutional Law

Chapter 8: Consent Searches Authority to Give Consent (Continued) Authority to Give Consent (Continued)  Husband-Wife: a spouse or other co-tenant can give valid consent for entry and search of areas jointly occupied by an absent spouse or co-tenant. On the other hand, if both spouses or co-tenants are present when consent is requested, either can cancel the other’s consent.  Third-Party Access: Consent to search can be obtained from a joint user of a container.  Motel Clerk: a motel owner or clerk cannot consent to police non-emergency entry of a guest’s room during the rental term.  Hotel Housekeeping Staff: hotel employees who can lawfully enter a guest’s room cannot give valid consent to police to do so. Investigative Constitutional Law

Chapter 8: Consent Searches Authority to Give Consent (Continued) Authority to Give Consent (Continued)  Landlord: a landlord may not give consent to police to enter a tenant’s rented or leased premises. Voluntariness of Consent Voluntariness of Consent  Consent is only valid if it is voluntary. This generally means that if police pressured the person into consenting, or gave the person no choice, the consent is coerced and ineffective to justify warrantless search or seizure.  “Reasonable Innocent Person” Standard: Voluntariness of consent is measured against a reasonable innocent person standard. Investigative Constitutional Law

Chapter 8: Consent Searches Voluntariness of Consent (Continued) Voluntariness of Consent (Continued)  Fruit of Unlawful Detention/Arrest/Search: Consent is not voluntary if it results from an unlawful detention, arrest or search.  Submission to Authority: In order to be voluntary, consent must not be a submission to an assertion of authority.  Submission to Threats: Consent is not voluntary if given in response to a threat that penalizes the person’s refusal to consent. Unrestricted consent, obtained before mention of a search warrant, may be used as an independent source, to expand the scope of search. Investigative Constitutional Law

Chapter 8: Consent Searches Voluntariness of Consent (Continued) Voluntariness of Consent (Continued)  Advice of Right to Refuse: There is no constitutional requirement that officers who request consent to search advise a person of the right to refuse. Implied Consent Implied Consent  Under some circumstances, those who take actions that are permitted only on noticed condition of consent to search will have implied their consent to such a search.  For example, if an officer says to a driver outside his car at a traffic stop, “Okay if I search your car?” and the driver says nothing but hands over the car keys and makes a sweeping hand gesture indicating that the officer is welcome to do so, this conduct would imply consent to search, and should be documented accordingly. Investigative Constitutional Law

Chapter 8: Consent Searches Scope of Search Scope of Search  The scope of any search is circumscribed by its justification. Just as a search warrant has a limited scope of search defined by the words of the warrant, every exception for warrantless search also has its specific scope of search.  Scope of search pursuant to consent is determined by the reasonable meaning of the words constituting the consent. Investigative Constitutional Law