For Educational Use Only
2
Constitutional Rights of the Accused 3d § 4:55
Constitutional Rights of the Accused
Database updated July 2011
Joseph G. Cook
Chapter 4. Search and Seizure
§ 4:55. Exceptions to the warrant requirement-Consent
A search warrant is not required when the party in interest effectively consents to the search. Such consent will not be found,
however, when the individual merely acquiesces to an assertion of authority to carry out the search. For example, in Amos v.
United States, 78 the wife of the accused permitted a search of his store when officer appeared at their residence and
announced that they had come to search the premises "for violations of the revenue law." The Sup,reme Court concluded that
a warrantless search could not be justified on a theory of consent.79 Similarly, in Johnson v. United States, so officers outside
the accused's hotel room smelled opium burning, knocked at her door, and when she responded one of them told her, "I want
you to consider yourself under arrest because we are going to search the room.". The Court found it implausible to contend
that the accused had consented to the search.81
Effective consent will not be found when the officers seeking consent claim to be making the search under the authority of a
warrant. In Bumper v. North Carolina82 the accused lived with his grandmother. Officers went to the residence, and one of
them told the grandmother, "I have a search warrant to search your house." In the kitchen they found a rifle, which was
introduced in evidence at the defendant's trial. To validate the search, the prosecution did not rely on the purported warrant
but argued that the grandmother had given her consent. The Court held that consent was not shown by "no more than
acquiescence to a claim of lawful authority."83
When a law enforcement officer claims authority to search a home under warrant, he announces in effect that
the occupant has no right to resist the search. The situation is instinct with coercion-albeit colorably lawful
coercion. "Where there is coercion there cannot be consent".84
The most thorough consideration by the Supreme Court of the requisites for effective consent is found in Schneckloth v.
Bustamante.! The accused was one of six individuals riding in an automobile which was stopped after being observed with a
headlight and a license plate light not burning. When the driver was unable to produce a driver's license, the officer inquired
if any of the remaining five occupants had any identification. Only one was able to supply identification, and after all six got
out of the car, the officer asked the only identified passenger (who claimed the car was his brother's) if he could search the
car. The passenger responded, "sure, go ahead," and cooperated in the search. Under the rear seat, the officer found three
checks stolen from a car wash. This evidence was used to convict the accused. The California Court of Appeals affirmed the
conviction,2 ... but the Capital Court of Appeals for the Ninth Circuit disagreed, holding that consent could not be effective
unless the consenter knew that consent could be withheld.3 The Supreme Court granted certiorari and reversed. The ultimate
question, the court reasoned, was whether the consent was voluntary, and voluntariness was to be determined from the
totality of the circumstances. In making this assessment, knowledge of the right to refuse was a factor to be considered, but it
was not dispositive A
Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
Amos v. United States, 255 U.S. 313, 65 L. Ed. 654, 41 S. Ct. 266 (1921 ).
78
Ne;.:; © 2012 Thomson Reuters. No claim to original U.S Government Works.
For Educational Use Only
79
"[I]t is perfectly clear that, under the implied coercion here presented, no such waiver was intended or effected." Amos v. United
States, 255 U.S. 313,317,65 L. Ed. 654,41 S. Ct. 266 (1921).
80
Johnson v. United States, 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367 (1948).
81
"Entry to defendant's living quarters, which was the beginning of the search, was demanded under color of office. It was granted in
submission to authority rather than as an understanding and intentional waiver of a constitutional right." Johnson v. United States,
333 U.S. 10, 13, 92 L. Ed. 436, 68 S. Ct. 367 (1948).
82
Bumper v. North Carolina, 391 U.S. 543,20 L. Ed. 2d 797,88 S. Ct. 1788,46 Ohio Op. 2d 382 (1968).
83
Bumper v. North Carolina, 391 U.S. 543, 549, 20 L. Ed. 2d 797, 88 S. Ct. 1788, 46 Ohio Op. 2d 382 (1968).
84
Bumper v. North Carolina, 391 U.S. 543, 550, 20 L. Ed. 2d 797, 88 S. Ct. 1788, 46 Ohio Op. 2d 382 (1968). Justice Black, in a
dissenting opinion, contended that valid consent had been obtained.
Schneckloth v. Bustamonte, 412 U.S. 218,36 L. Ed. 2d 854,93 S. Ct. 2041 (1973), on remand, 479 F.2d 1047 (9th Cir. 1973).
2
People v. Bustamonte, 270 Cal. App. 2d 648, 76 Cal. Rptr. 17 (1st Dist. 1969).
3
Bustamonte v. Schneckloth, 448 F.2d 699 (9th Cir. Cal. 1971), rev'd, 412 U.S. 218, 36 L. Ed. 2d 854,93 S. Ct. 2041 (1973), on
remand, 479 F.2d 1047 (9th Cir. 1973).
4
"[N]either the Court's prior cases, nor the traditional definition of 'voluntariness' requires proof of knowledge of a right to refuse
as the sine qua non of an effective consent to search." Bustamonte v. Schneckloth, 448 F .2d 699 (9th Cir. Cal. 1971 ), rev' d, 412
U.S. 218, 235, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), on remand, 479 F.2d 1047 (9th Cir. 1973).
End of Document
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
Nexi © 2012 Thomson Reuters. No claim to original U.S. Government Works.
2