Criminal Procedure for the
Criminal Justice Professional
11th Edition
John N. Ferdico
Henry F. Fradella
Christopher Totten
Consent Searches
Chapter 9
Prepared by Tony Wolusky
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.

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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.
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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.

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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:
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Parent-child
Hotel management-guests
Hosts-guests
Landlords-tenants
Employer-employee
School officials-students
Spouses