Consent
Definition
Consent search occurs when a person voluntarily allows a law enforcement agent to inspect their belongings, premises, or body
Admissible in Court
Evidence which is seized as a result of a consent search is admissible in court
Probable cause is not needed
A warrant is not needed
Coercion?
The fourth and fourteenth Amendments require that consent not be coerced by explicit or implicit threat or covert force
Schneckloth v. Bustamonte (1973) 412 US 218
Voluntariness
To determine if consent was voluntary courts look at the “totality of the circumstances”
No one thing may tip the scale, but a combination of things may
Totality of the Circumstances
Always look at all of the circumstances including the particular defendant involved
Was the defendant sick, injured, mentally ill, emotionally distraught, under the influence of alcohol or drugs, etc.?
The question is, did defendant know what they were doing
Otherwise may not truly be a knowing, intelligent and voluntary consent
Proof of Consent
The courts recognize this is easily subject to potential abuse by law enforcement
Therefore, courts require the GOVERNMENT to prove to the judge that consent existed and was voluntary
Must prove this by “clear and convincing evidence”, not just a preponderance of evidence as is usual for proof of legal matters
Oral Consent
Written consent is not necessarily but is advisable if practical
Oral consent is acceptable
If possible, it is best to have any oral consent witnessed
Conduct
Consent need not be in words to valid
Can be implied by gestures or conduct
E.g., nodding yes; opening a container
But it must be sufficient to convince the judge that consent in fact existed:
By clear and convincing evidence based on the totality of the circumstances
Warnings
Do not need to warn of a so-called “right not to consent” prior to getting voluntary consent
Ohio v. Robinette (1996) 519 US 33
However, the court will look at all of the circumstances surrounding the giving of consent to make sure it is “voluntary”
One factor looked at among all of the others is whether the person was aware they need not consent
Counsel
No right to counsel prior to police asking for and receiving consent to search
Kirby v. Illinois (1972) 406 US 682
If the subject asks to consult with counsel, and that request is refused, it can be one indication that the consent was involuntary
Remember, a defendant has no Sixth Amendment “right to counsel” intil after the initiation of adversary judicial criminal proceedings
When in Custody
Being under arrest or otherwise lawfully detained does not of itself make consent involuntary
United States v. Watson (1976) 423 US 411
However, it is one factor court will consider among the totality of the circumstances because:
A detained person is believed to be “more susceptible to durress or coercion from custodial officers”
Miranda Warnings?
Questions and Miranda Warnings
If a defendant is in custody, prior to being questioned (even to give consent to search), Miranda warnings must be given and a valid waiver obtained
Deceit as to Identity
An officer can legally obtain consent to search when deceiving a person as to the officer’s identity
E.g., an undercover cop
Example: Let’s say there is an undercover cop pretending to be a student in your class. You and that cop become friends, and you have no idea he is really a police officer. Let’s say that undercover officer asks to look in your backpack for your textbook, and you say “sure”. The officer finds your cocaine in your backpack. This is a lawful consent search
A suspect’s misplaced confidence in someone does not make the suspect’s consent involuntary
Deceit as to Other Factors
However, officer cannot lawfully deceive someone as to a material (important) fact (other than identity) to get their consent
If an officer does so, it will be considered to be coercion
Warrant Threat
Cannot pretend to have a warrant
Bumper v. North Carolina (1968) 391 US 543
Cannot say will get a warrant
(because we do not know if judge will issue one)
Generally can advise will attempt to get a warrant if the search target does not consent
Scope of Consent
The scope of consent is set by the suspect
Scope of consent can be limited by a suspect
What would the “typical reasonable person” have understood from the words used
Consent to enter is not consent to search
Consent to search one room is not consent to search the whole house
However, the plain view exception applies in the area entered once there is consent to enter
The U.S. Supreme Court has held that it was reasonable for the police to conclude that consent for police to search subject’s car was also consent for them to search containers within the car
Florida v. Jimeno (1991) 500 US 248
The Court reasoned that:
It is obvious to a reasonable person that if police are looking for drugs, they are usually found in a container such as a closed paper bag or vile, but
The Court said it was unreasonable to believe that a suspect who consented to a search of his car trunk has agreed to the breaking open of a locked briefcase in the trunk
Revocation of Consent
Suspect can revoke consent at any time as to areas not yet searched
Cannot revoke consent once search has already occurred in that area
Who May Consent
Generally only the person with the reasonable and justifiable expectation of privacy in the area to be searched or the item to be seized may consent
E.g., only the person themself may lawfully consent to a search of that person or their clothing
Can be difficult if two people have authority
Common Authority
If two or more people have common authority over an area,
An no co-tenant who is present objects
Either person may validly grant consent
United States v. Matlock (1974) 415 US 164
It’s reasonable to conclude that any of those with access to the property has the right to permit the inspection of that property in their own right and
That the others have assumed the risk that one of them might permit a common area to be searched
BUT: Georgia v. Randolph (2006):
The U.S. Supreme Court held that the police may not conduct a valid warrantless search of a house pursuant to consent when a person with common authority has consented to the search BUT another person with common authority is present and refuses consent
In a 2012 case in front of the US Supreme Court, the question was:
When one person (the suspect’s wife) with common authority consents to a search of the house, and the other person (who is the suspect in a crime) with common authority objects, can the police lawfully return to the house when the suspect isn’t there, obtain consent from the wife, search the house and be able to admit what they find into evidence?
The US Supreme Court said this was lawful, and the trial court could overrule the defendant’s motion to suppress the evidence found and admit it into evidence at the defendant’s trial
Who May Consent (continued)
Remember this does not mean the police can accept anyone’s invitation to enter and search
It must be reasonable based on all of the facts
The officers should conduct at least some investigation if there is any question
Burden on Police
The police have the burden of making sure the person consenting has the authority to do so
However, a warrantless entry and search is valid when based on the consent of a third party whom the police REASONABLY BELIEVE to possess common authority over the premises but who in fact does not have such authority
The question for the court is:
Would the facts available to the officer at that moment justify a reasonable person in believing that the consenting party had authority over the premises or property in question
A search based on an erroneous view of the law will NOT be valid
For example, where an officer erroneously believes someone (like a landlord) has authority to consent to a search when they do not
Whenever someone’s Constitutional Rights are in question, the courts will carefully scrutinize all of the facts and circumstances to see if the waiver of those rights was fair and reasonable
Because the issue of who may validly consent is fact driven, it can be confusing
Here are some specific examples:
Co-owners/Co-tenants
Any one of co-tenants or co-owners have authority to consent to a search of the common areas of the property
This raises the question of what is a “common area”
Evidence found may be used against any of the co-owners or tenants
Example: Let’s say three roommates share a kitchen in an apartment., and let’s say one roommate has given permission to the police to search that kitchen. If an illegal drug has been found in that kitchen, all three roommates can be charged with possession of that drug. They may end up with a defense, but they’re gonna have to show that defense at trial.
Roommates
For roommates you have to look at the totality of the circumstances
Did the person complaining have a reasonable and justifiable expectation of privacy in that area?
Think of a one room double dorm room compared to a two bedroom apartment with lockable doors
Can consent to common areas because no separate right to privacy
Cannot consent to private areas unless unlimited access is allowed
E.g., each roommate allows others to use, without asking permission, their video games, clothes, etc. found in their individual room
Example: Let’s say Barbara and Ramona share an apartment, and each has her own bedroom that can be locked. Let’s say that it can be shown that Barbara does not lock her bedroom and allows Ramona to go into that room to use Barbara’s computer anytime Ramona wants to do so. In that case, Barbara’s room is not to be considered a private area. Barbara does not have a reasonable expectation of privacy in that room because she allows Ramona full access to it.
Landlord
Does not have the right to consent to a search of a tenant’s house or apartment
Chapman v. United States (1961) 365 US 610
Rental agreement (oral or written) gives tenant the exclusive right to possess the premises against everyone else in the world, including the landlord
Landlord Exceptions
Landlord can enter premises with notice to the tenant:
To show it to prospective buyers or renters
To make repairs
To check for damage
Landlord (continued)
Landlord does have the right to consent to a search of an apartment building’s common areas
Because there is no right to privacy in these areas
Hotel Manager
Management cannot lawfully consent to search of tenant’s room while the room is paid for
Stoner v. California (1964) 376 US 483
Once occupancy expires, management can consent to search for property or trace evidence left by former occupant
Dorms
Generally, dorm rooms are treated the same as a hotel room and school authorities cannot consent to search
This may be modified by the contract between the college or university and the student
Consent to search may be a term of the contract
Houseguest
Host generally has authority to consent to search of area occupied by a casual houseguest
Courts focus on:
Length of stay,
Exclusivity of control of that area by guest, and
Guest’s reasonable and justifiable expectation of privacy in that area, or not
Employer
Generally has authority to consent to a search of entire premises including employee desks and lockers
Employer may not consent to search if an area has been specifically set aside for that employee and they have exclusive control over that area, or
A union or other contract prohibits it
Public Schools
Generally a public school official may validly consent to the search of a student locker
Limited expectation of privacy
“In loco parentis”
Parents
A parent may consent to a search or premises owned by the parent and occupied by their minor child
Can also apply to an adult child if the child does not have exclusive control over the area and/or is not paying rent