Chapter 8: Investigative Constitutional Law

Consent

Charles L. Feer, JD, MPACharles L. Feer, JD, MPABakersfield CollegeBakersfield College

Department of Criminal JusticeDepartment of Criminal Justice

Consent Searches

Learning OutcomesLearning Outcomes The general rule for consent searches and the Fourth Amendment.The general rule for consent searches and the Fourth Amendment. Timing of the request for consent during various investigative Timing of the request for consent during various investigative

activities.activities. Revoking and limiting consent at the will of the consenter.Revoking and limiting consent at the will of the consenter. Who has authority to consent, including special problems with Who has authority to consent, including special problems with

apparent authority, husband-wife, landlord-tenant, hotelier-guest, apparent authority, husband-wife, landlord-tenant, hotelier-guest, and third-party access issues.and third-party access issues.

The requirement of “voluntariness.” What makes consent The requirement of “voluntariness.” What makes consent involuntary, including illegal detention or arrest, threats and involuntary, including illegal detention or arrest, threats and claims of authority.claims of authority.

Investigative Constitutional Law

Chapter 8: Consent Searches

Learning Outcomes Learning Outcomes (Continued)(Continued) Whether or not a police officer must advise the person of the right Whether or not a police officer must advise the person of the right

to refuse consent.to refuse consent. Examples of implied consent.Examples of implied consent. Scope of activity during a consent search.Scope of activity during a consent search.

Investigative Constitutional Law

Consent Searches General RuleGeneral Rule

The Supreme Court has strongly endorsed consent as The Supreme Court has strongly endorsed consent as an established exception to the warrant requirement, for an established exception to the warrant requirement, for several reasons.several reasons.

In situations where an officer cannot justify a non-In situations where an officer cannot justify a non-consensual search, the choice may be between consensual search, the choice may be between attempting to obtain consent for a search and letting a attempting to obtain consent for a search and letting a dangerous or guilty offender walk away.dangerous or guilty offender walk away.

Consent is one of the established exceptions for Consent is one of the established exceptions for constitutional warrantless searches.constitutional warrantless searches.

Investigative Constitutional Law

Consent Searches Consent as an Independent SourceConsent as an Independent Source

Not only is consent a viable option when there is no Not only is consent a viable option when there is no other way to justify a search, it can also be an other way to justify a search, it can also be an alternative, independent justification for a search that is alternative, independent justification for a search that is believed to be justified by an- other exception (or even believed to be justified by an- other exception (or even a warrant), in case a reviewing court finds fault with the a warrant), in case a reviewing court finds fault with the other basis for searching.other basis for searching.

(Consent can provide the “search-and-seizure (Consent can provide the “search-and-seizure insurance” of an independent source for searches that insurance” of an independent source for searches that might be found unreasonable on other grounds.)might be found unreasonable on other grounds.)

Investigative Constitutional Law

Consent Searches Requesting ConsentRequesting Consent

Because the act of requesting consent is Because the act of requesting consent is notnot itself a search or a itself a search or a seizure, it seizure, it can be done without any suspicion of wrongdoingcan be done without any suspicion of wrongdoing. It would . It would be sufficient for Fourth Amendment purposes that a police report be sufficient for Fourth Amendment purposes that a police report showed that in the course of lawful activity, the officer asked for showed that in the course of lawful activity, the officer asked for consent, and it was freely given.consent, and it was freely given.

During During Consensual EncounterConsensual Encounter: It is permissible during the course : It is permissible during the course of a consensual encounter for officers to request consent to of a consensual encounter for officers to request consent to search, as indicated in search, as indicated in Florida v. Bostick Florida v. Bostick and and US v. Drayton.US v. Drayton.

During Detention: The mere fact that a person is lawfully During Detention: The mere fact that a person is lawfully detained on the basis of reasonable suspicion does not detained on the basis of reasonable suspicion does not automatically permit any search activity. automatically permit any search activity. Consent may be Consent may be obtained during a lawful detention.obtained during a lawful detention.

Investigative Constitutional Law

Consent Searches Requesting Consent Requesting Consent (Continued)(Continued)

After Arrest: Police are not prohibited from asking an arrested After Arrest: Police are not prohibited from asking an arrested person for consent to search. Although it is sometimes thought person for consent to search. Although it is sometimes thought that the stress of being under arrest would cause consent to be that the stress of being under arrest would cause consent to be coercedcoerced, the fact that a person is in police custody does not, in , the fact that a person is in police custody does not, in and of itself, make his consent involuntaryand of itself, make his consent involuntary..

For Entry and Search: Consent is a valid and advantageous For Entry and Search: Consent is a valid and advantageous means of making lawful entry into and searching homes.means of making lawful entry into and searching homes.

Evidentiary Issues: Whenever possible, Evidentiary Issues: Whenever possible, law enforcement law enforcement officers should try to preserve officers should try to preserve affirmative evidence of consent affirmative evidence of consent on tape or in writing.on tape or in writing.

Investigative Constitutional Law

Consent Searches Conditions and Revocation of ConsentConditions and Revocation of Consent

Because an individual has the right to withhold consent Because an individual has the right to withhold consent completely, s/he also has the right to give a limited or a completely, s/he also has the right to give a limited or a conditional consent, and has the right to revoke his or her conditional consent, and has the right to revoke his or her consent at will.consent at will.

Authority to Give ConsentAuthority to Give Consent As a general rule, all of those who share As a general rule, all of those who share common access common access to to

an area can consent to its search. No one may consent to a an area can consent to its search. No one may consent to a search of places where someone else has exclusive control search of places where someone else has exclusive control and access.and access.

Apparent Authority: Police may rely on apparent Apparent Authority: Police may rely on apparent authority for consent to search, even though it may later authority for consent to search, even though it may later be determined that the person had no right to consent to be determined that the person had no right to consent to the search.the search.

Investigative Constitutional Law

Consent Searches Authority to Give Consent Authority to Give Consent (Continued)(Continued)

Husband-Wife: a spouse or other co-tenant can give valid Husband-Wife: a spouse or other co-tenant can give valid consent for entry and search of areas consent for entry and search of areas jointly occupied jointly occupied by by an absent spouse or co-tenant. On the other hand, if both an absent spouse or co-tenant. On the other hand, if both spouses or co-tenants are present when consent is spouses or co-tenants are present when consent is requested, either can cancel the other’s consent.requested, either can cancel the other’s consent.

Third-Party Access: Consent to search can be obtained Third-Party Access: Consent to search can be obtained from a joint user of a container.from a joint user of a container.

Motel Clerk: a motel owner or clerk Motel Clerk: a motel owner or clerk cannot cannot consent to consent to police non-emergency entry of a guest’s room police non-emergency entry of a guest’s room during the during the rental termrental term..

Hotel Housekeeping Staff: hotel employees who can Hotel Housekeeping Staff: hotel employees who can lawfully enter a guest’s room cannot give valid consent lawfully enter a guest’s room cannot give valid consent to police to do so.to police to do so.

Investigative Constitutional Law

Consent Searches Authority to Give Consent Authority to Give Consent (Continued)(Continued)

Landlord: a landlord may not give consent to police to enter a Landlord: a landlord may not give consent to police to enter a tenant’s rented or leased premises.tenant’s rented or leased premises.

Voluntariness of ConsentVoluntariness of Consent Consent is only valid if it is Consent is only valid if it is voluntaryvoluntary. This generally means that . This generally means that

if police pressured the person into consenting, or gave the person if police pressured the person into consenting, or gave the person no choice, the consent is coerced and ineffective to justify no choice, the consent is coerced and ineffective to justify warrantless search or seizure.warrantless search or seizure.

““Reasonable Innocent Person” Standard: Voluntariness of Reasonable Innocent Person” Standard: Voluntariness of consent is measured against a reasonable innocent person consent is measured against a reasonable innocent person standard.standard.

Investigative Constitutional Law

Consent Searches Voluntariness of ConsentVoluntariness of Consent (Continued)(Continued)

Fruit of Unlawful Detention/Arrest/Search: Consent is not Fruit of Unlawful Detention/Arrest/Search: Consent is not voluntary if it results from an unlawful detention, arrest or voluntary if it results from an unlawful detention, arrest or search.search.

Submission to Authority: In order to be voluntary, consent Submission to Authority: In order to be voluntary, consent must not be a must not be a submission to an assertion of authoritysubmission to an assertion of authority..

Submission to Threats: Consent is not voluntary if given in Submission to Threats: Consent is not voluntary if given in response to a threat that penalizes the person’s refusal to response to a threat that penalizes the person’s refusal to consent. Unrestricted consent, obtained before mention of a consent. Unrestricted consent, obtained before mention of a search warrant, may be used as an independent source, to search warrant, may be used as an independent source, to expand the scope of search.expand the scope of search.

Investigative Constitutional Law

Consent Searches Voluntariness of Consent Voluntariness of Consent (Continued)(Continued)

Advice of Right to Refuse: There is no constitutional requirement Advice of Right to Refuse: There is no constitutional requirement that officers who request consent to search advise a person of the that officers who request consent to search advise a person of the right to refuse.right to refuse.

Implied ConsentImplied Consent Under some circumstances, those who take actions that are permitted Under some circumstances, those who take actions that are permitted

only on noticed condition of consent to search will have implied their only on noticed condition of consent to search will have implied their consent to such a search.consent to such a search.

For example, if an officer says to a driver outside his car at a traffic 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 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 hands over the car keys and makes a sweeping hand gesture indicating that the officer is welcome to do so, this conduct would that the officer is welcome to do so, this conduct would implyimply consent consent to search, and should be to search, and should be documenteddocumented accordingly. accordingly.

Investigative Constitutional Law

Consent Searches

Scope of SearchScope of Search The scope of any search is circumscribed by its justification. Just The scope of any search is circumscribed by its justification. Just

as a search warrant has a limited scope of search defined by the as a search warrant has a limited scope of search defined by the words of the warrant, every exception for warrantless search also words of the warrant, every exception for warrantless search also has its specific scope of search. has its specific scope of search.

Scope of search pursuant to consent is determined by the Scope of search pursuant to consent is determined by the reasonable meaning of the words constituting the consent.reasonable meaning of the words constituting the consent.

Investigative Constitutional Law

Consent SearchesConsent Searches Expressed ConsentExpressed Consent

Given directly orally or in writingGiven directly orally or in writing Positive, direct, unequivocal consentPositive, direct, unequivocal consent

Implied ConsentImplied Consent Manifested by signs, actions or inactions, Manifested by signs, actions or inactions,

facts, or silence which raise presumption facts, or silence which raise presumption that consent has been giventhat consent has been given

Who May Give Consent?Who May Give Consent? SuspectSuspect Authorized third personAuthorized third person

Spouse Spouse Roommate, live in partnerRoommate, live in partner Co-tenantCo-tenant BabysitterBabysitter House guest House guest

Consent may be withdrawn at anytime

Arvizu

Case Brief: 9 Facts Observed What is “Reasonable Suspicion?”