ALERT

“Consent Searches”

ALERT is a periodic training guide provided without cost to the law enforcement community. Previous online editions include:

Introduction

There are two basic requirements to the Fourth Amendment. The first is that searches and seizures must take place only when a police officer has probable cause. Probable cause is defined as sufficient information, based on the totality of the circumstances, to give a reasonable police officer a belief that a crime is being, has been, or is about to be committed. [1]

An exception to the probable cause requirement is our stop and frisk power under Terry v. Ohio [2], which requires only “ reasonable suspicion,” a lesser standard than “probable cause.”

The second basic requirement for a search and seizure is a warrant. Indeed, a search and seizure without a warrant is presumed by courts to be unreasonable under the Fourth Amendment. [3]

Warrant Requirement Exceptions

In spite of this warrant presumption we know that most searches take place without a warrant. The U.S. Supreme Court has created many exceptions to the warrant requirement. Most of these exceptions are based on the practical realities of law enforcement. They include exigent circumstances, hot pursuit, searches incident to lawful arrest, seizures in plain view, vehicle searches, inventory searches, border searches and roadblocks.

Another exception to the warrant requirement and, indeed, to the probable cause requirement as well, is a voluntary consent to search. One way to think of consent to search is that a person who has constitutional rights under the Fourth Amendment, in fact, decides not to exercise these rights.

Voluntariness

A consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with police coercion, actual or implicit, overt or subtle.

No one circumstance is determinative of the voluntariness of a consent to search. Whether consent is voluntarily given or is only a yielding to overbearing police pressure is determined by the courts from the circumstances. And, when your case gets to court it will be the prosecutor who will have the burden of proving the consent was voluntary. The prosecutor will look to you to supply him with the facts to establish this burden of proof. [4]

Factors the Courts Consider

There are a number of factors courts look at to determine the voluntariness of a consent to search. Let us consider some of these factors.

An important factor in determining the voluntariness of an apparent consent is whether the person was in custody or under arrest, and the circumstances surrounding the custody or arrest. Custody or arrest alone does not necessarily preclude a finding of voluntariness. [5] Custody, or the immediate events surrounding an arrest, especially a resisted arrest, can create an atmosphere of authority ordinarily contradictory of a capacity to exercise a free and unconstrained will. This is especially true when the person in custody or under arrest is confronted by a large number of police officers. Submission to police authority is not a valid consent.

Another factor considered by the courts in determining the voluntariness of an apparent consent is the background of the consenter. The consent to search by a hardened criminal is more likely to be the product of free choice rather than involuntary. Then too, as many officers have witnessed, an experienced criminal may voluntarily consent to the search of a car, for example, gambling that the officer might not find drugs hidden inside the door panel or under a floorboard. If the defendant loses this gamble, the consent nevertheless will be upheld by a court as voluntary. Simply because a defendant consents to a search thinking the police will not find hidden contraband does not make the consent involuntary.

Another factor to be considered is whether the defendant has been evasive or uncooperative with the police, either previously to the giving of the consent or after consent. Of course, if a defendant assists the police in their search, this would be evidence of a voluntary consent. [6]

A final factor is whether the defendant was advised of his right to refuse to consent. Such advice is not mandatory. Failure to advise however, may be considered in determining whether a consent was voluntary. [7]

Other Issues

These are the basic factors the courts look at in considering the core issue of voluntariness of a consent. Let us now consider some of the many secondary issues that the courts have also dealt with.

Reference to a Warrant

When police officers tell a suspect they have a warrant but no warrant is produced at trial or the warrant turns out to be invalid, the consent is usually invalid. [8] The mere threat to get a warrant, however, has been held insufficient to make a consent involuntary. [9]

Use of Deception

Deception may invalidate a consent. In one case an officer told a defendant he would sell a gun and instead had a ballistics test run; the consent was involuntary. [10] In another case the defendant was told a blood sample was for an alcohol test but it was used to type his blood for comparison with blood stains in a rape investigation. The consent was involuntary. [11] In both cases the courts reasoned the deception destroyed the voluntary aspect of the consent.

Limiting the Scope of the Consent

A person who consents to a search may limit the scope of the search and those limitations must be respected. For example, a consent to search for narcotics did not confer authority to search for papers. [12] But a defendant cannot withdraw his consent or enlarge its limitation once the police find evidence.

Third Party Consents

With regard to the issue of who has the right to give consent for a search that results in obtaining incriminating evidence against defendant, it has been held that a hotel owner, clerk, or other employee may not grant permission to the police to search the room of a guest, despite the management’s right to enter guest rooms for hotel related purposes. [13] But a third party who possesses common authority over an area can consent to a search, for example, a woman who cohabited with a roomer was able to consent to a search of the bedroom she sometimes occupied. [14]

Numerous consent case situations have arisen, such as those involving the power of consent on the part of a co-tenant, a spouse (or “live-in” companion), a parent, an employer as regards an employee’s desk or locker, etc. Usually the key factor is the nature and the extent of control possessed by the consenting individual, either over the premises or the container in the premises that has been subjected to the search. Even if the person lacks actual authority, if they have “apparent authority,” based on a reasonable evaluation of the circumstances by the police, the person can consent to a search binding the defendant. [15] But a third party can only consent to a search of property over which he has common authority with the defendant, not to a deprivation of possession of such property if he has no ownership interest. [16]

Traffic Stops

Traffic stops present a unique situation for consents to search. Often police officers will request a consent to search the driver’s vehicle. It is best to do this after the officer has completed the traffic “business,” such as issuance of a ticket or giving a warning and returning the motorist’s license to him, etc., so that when the request for a consent is made the driver is legally free from official restraint. This will bolster the voluntariness of a consent.

In State v. Robinette, [17] the Supreme Court of Ohio ruled that an officer must warn a motorist when an investigative detention has ended, before attempting to obtain the consent to search the motorist’s car. An appeal was granted by the United States Supreme Court on the issue: “Does Fourth Amendment require police officers to inform motorists, lawfully stopped for traffic violations, that the detention has concluded before any subsequent interrogation or search will be found to be consensual?” The Court ruled [18] there is no constitutional requirement to give any such warning before requesting a consent to search a motorist’s car. This ruling was consistent with its previous holding that consents in general need not be preceded by a warning of Fourth Amendment rights.

Reasonable Person Test

In Florida v. Bostick [19] two Sheriff’s Department officers boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. The officers had badges, insignias, and one of them held a “recognizable zipper bag, containing a pistol.” Eyeing the passengers, without reasonable suspicion, they picked out passenger Terrance Bostick. They asked to inspect his ticket and his identification. Bostick cooperated. They returned his ticket and identification when nothing remarkable appeared. They then asked Bostick’s permission to search his luggage, telling him they were narcotics agents in quest of drugs, and informing Bostick of his right to refuse consent. Bostick agreed to the search. The officers discovered cocaine in one of his suitcases.

The Supreme Court rejected Bostick’s argument that he had been illegally “seized” within the meaning of the Fourth Amendment and therefore his consent was not voluntary because no reasonable person would freely consent to a search of his luggage if he knows it contains contraband. The Court said, “This argument cannot prevail because the ‘reasonable person’ test presupposes an innocent person.” Thus, the fact that a defendant knows the search will likely turn up evidence is not relevant to the voluntariness issue. The consent must be viewed from the standpoint of an innocent person in the defendant’s position.

Scope of Defendant’s Consent

In Florida v. Jimeno, [20] following a traffic stop, an officer told the driver that he believed the driver was carrying drugs in his car. He said he was looking for drugs and obtained consent to search the vehicle after warning the driver of his right not to consent. Supposedly the driver said he had nothing to hide. Apparently this statement was not altogether accurate: the officer found a kilogram of cocaine inside a brown paper bag on the floorboard of the car.

The state supreme court upheld a trial judge’s decision to exclude the cocaine, holding that the consent to search the car did not authorize a search of the paper bag found in the car. The United States Supreme court disagreed and overturned the suppression order. It declared:

A reasonable person may be expected to know that narcotics are generally carried in some form of a container. Contraband goods rarely are strewn across the trunk or floor of a car. The authorization to search in this case, therefore, extended beyond the surface of the car’s interior to the paper bag lying on the floor’s interior.

The same issue was involved in the 2001 case of Pinkney v. State, [21] where it was held that a reasonable person would have understood that his consent to a patdown search for drugs or weapons included permission for a search of his outer clothing, including a back pants pocket, which might reasonably contain those specified items. The evidence supported a finding that the officer did not exceed the scope of defendant’s consent to search, where the officer testified that as he conducted the patdown search of defendant’s outer clothing, he immediately recognized a cigar and round plastic bag in defendant’s rear jeans’ pocket, and that he knew from prior experience that people on the street would commonly hollow out a cigar to fill it with marijuana. The Court said:

“Here, the expressed objects of Officer Severns’ search were drugs and weapons. When Pinkney gave Officer Severns permission to search his person for drugs and weapons, a reasonable person would have understood Pinkney’s consent to include permission to search Pinkney’s outer clothing, including his back pants pocket, which might reasonably contain those specified items.”

Civil Liability

Finally, there is the issue of potential civil liability. Since a consent to search involves constitutional rights, an officer and his agency are potentially at risk under the civil rights act, 42 U.S.C. § 1983, for a violation of the Fourth Amendment. There is also potential liability for the officer and department under state tort laws, for example, false arrest, false imprisonment.

A department must have valid rules and policies on consent searches, training, supervision, and discipline for violations. And officers must follow the rules, policies and the court cases on the subject. When an officer has a question on this topic—as with any topic involving constitutional rights—it may well be time to consult the department’s legal advisor. This is especially important because many states do not follow the United States Supreme Court cases on consent searches. These states interpret their state constitutions to give additional rights to defendants. Your legal advisor can tell you whether your state has special rules on the subject of consent searches.

Endnotes

1. The totality of the circumstances approach was reaffirmed by the U.S. Supreme Court in U.S. v. Arvizu, No. 00-1519, 122 S.Ct. 744, 2002 WL 46773 (2002).

2. Terry v. Ohio, 392 U.S. 1 (1968).

3. Coolidge v. New Hampshire, 403 U.S. 443 (1971).

4. Bumper v. North Carolina, 391 U.S. 543 (1968).

5. United States v. Watson, 423 U.S. 411 (1976).

6. People v. Gonzalez, 39 N.Y.2d 122, 347 N.E.2d 575 (1976).

7. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United States v. Watson, 423 U.S. 411 (1976).

8. Bumper v. North Carolina, 391 U.S. 543 (1968).

9. Barlow v. State, 280 A.2d 703 (Del. 1971); State v. Douglas, 488 P.2d 1366 (Or. 1971).

10. Commonwealth v. Brown, 261 A.2d 879 (1970).

11. Graves v. Beto, 424 F.2d 524 (5th Cir. 1970).

12. United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971).

13. Stoner v. California, 376 U.S. 483 (1964).

14. United States v. Matlock, 415 U.S. 164 (1974).

15. Illinois v. Rodriguez, 497 U.S. 177 (1990).

16. People v. Blair, 321 Ill.App.3d 373, 748 N.E.2d 318, 2001 Ill.App. Lexis 304 (2001) “ . . .we hold that the consent of the third party is ineffective to permit the government to seize property in which the third party has no actual or apparent ownership interest. Rather, a seizure is lawful only when the owner of the property consents to the seizure, or police are lawfully present and there is contraband, stolen property, or evidence of a crime.”

17. State v. Robinette, 73 Ohio St. 3d 650, 653 N.E.2d 695 (Ohio 1995).

18. Ohio v. Robinette, 519 U.S. 33 (1996).

19. Florida v. Bostick, 501 U.S. 429 (1991).

20. Florida v. Jimeno, 500 U.S. 248 (1991).

21. Pinkney v. State, 742 N.E.2d 956 (Ind.App. 2001).

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