Consent Searches: Guidelines for Officers
Crawford, Kimberly A., The FBI Law Enforcement Bulletin
Consent can be an effective weapon in an investigator's arsenal. When asked for permission to search, individuals with plenty to hide often defy common sense and waive their constitutional right to privacy. Evidence confiscated during a consent search is admissible in a subsequent trial, as long as the officer conducting the search follows the fundamental requirements of the consent to search doctrine and is able to prove the same.
When the Supreme Court decided Schneckloth v. Bustamonte(1) in 1973, and United States v. Matlock(2) in 1974, consent as an exception to the fourth amendment warrant requirement became a fairly well-settled principal of law. Of the few questions pertaining to consent searches that remained unresolved following Schneckloth and Matlock, most were answered by the Supreme Court in the cases of Illinois v. Rodriguez(3) and Florida v. Jimeno.(4) However, one question relating to consent searches that remains unanswered by the Supreme Court is whether law enforcement officers can rely on an individual's consent that is given in the wake of another individual's refusal to consent.
This article examines the parameters of the consent to search doctrine established by the Supreme Court in Schneckloth. Matlock, Rodriguez, and Jimeno. It then discusses legal and policy considerations for investigators when seeking consent from one person following another person's refusal to consent.
FOUNDATIONS OF THE CONSENT TO SEARCH DOCTRINE
In Schneckloth and Matlock, the Supreme Court established the two prerequisites for a valid consent to search. Specifically, the Court held that a lawful consent must be given voluntarily and by a person with authority. Moreover, because consent is an exception to the general requirement that searches be conducted pursuant to a warrant, the government bears the burden of proving both of these prerequisites.
When determining the voluntariness of a consent to search, courts use a "totality of the circumstances"(5) test, where all the factors surrounding the consent are examined to determine whether it was a product of the consenter's free will. Using this test, courts have concluded that the following factors do not necessarily render a consent involuntary:
1) The failure to advise an individual of the right to refuse consent(6)
2) The fact that officers had their weapons drawn and had handcuffed an individual prior to asking for consent,(7) and
3) The obtaining of consent from a person under the influence of drugs.(8)
Officers should recognize, however, that although these factors do not automatically necessitate a finding of involuntariness, they are factors that courts carefully weigh in the totality of circumstances test to determine the voluntariness of a consent.
The determination of who has lawful authority to consent to a search will depend initially on the object of the intended search. If law enforcement officers want permission to search a person, then only the person to be searched has the authority to consent. If, on the other hand, officers desire to search premises, vehicles, or items of personal property that can be shared by two or more people, the determination of who may consent to the search will require an analysis of who has a fourth amendment right of privacy in the area.(9)
Because consent is a waiver of the fourth amendment right of privacy, only an individual with that right of privacy may consent to a search. The fourth amendment right of privacy, however, is not a function of ownership. Thus, the fact that an individual owns an apartment building does not automatically give this individual a fourth amendment right of privacy in a rented apartment that he can waive by consent.
Rather than ownership, the courts look for lawful access and control when determining authority to consent. If individuals share access and control over an area, there is common authority to consent to search of that area. …