Consent Searches: Factors Courts Consider in Determining Voluntariness. (Legal Digest)
Holcomb, Jayme Walker, The FBI Law Enforcement Bulletin
Law enforcement officers often ask individuals if they will consent to a search of something, such as a package, vehicle, or dwelling. The Fourth Amendment preserves the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (1) The U.S. Supreme Court has stated that a search conducted pursuant to lawfully given consent is an exception to the warrant and probable cause requirements of the Fourth Amendment. (2) However, because a consensual search of an item or location still is a search, the Fourth Amendment reasonableness requirement still applies.
For a consent search to be constitutionally valid, the consent must be voluntarily given by a person with proper authority. (3) The government has the burden of proving that an individual voluntarily consented to the search. (4) In 1973, the U.S. Supreme Court ruled in Schneckloth v. Bustamonte (5) that to determine whether an individual voluntarily consented to a search, the reviewing court should consider the totality of the circumstances surrounding the consent. This article provides a broad overview of the types of factors courts have considered in conducting their totality of the circumstances analysis into whether a person has voluntarily consented to a search.
Under the U.S. Supreme Court's totality of the circumstances test, the impact of everything that occurs during the course of an individual giving consent to search a particular person, place, or thing must be considered when determining if the consent was voluntary. Courts may consider virtually any factor surrounding an individual's consent. However, an analysis of court decisions indicates that there are a number of factors that are particularly relevant. These factors can be placed into four broad categories: the characteristics of the subject giving the consent, the environment in which the consent is given, the actions taken or statements made by the subject giving the consent, and the actions taken or statements made by law enforcement officers during the course of asking for consent to search.
Characteristics of the Subject
Courts carefully will examine the characteristics of the individual who is asked to give consent to a search. Courts have, for example, specifically considered the individual's age, (6) education, (7) background, (8) experience with the legal system, (9) physical condition, (10) and ability to understand and communicate (11) in determining the voluntariness of a consent to search.
The U.S. Court of Appeals for the Tenth Circuit considered many of these characteristics in United States v. Zapata. (12) In Zapata, a DEA agent approached Zapata while he sat in the coach section of a train stopped in Albuquerque. The agent and backup officer both wore plainclothes, did not display weapons, asked routine questions in a regular tone of voice, and did not tell Zapata that he need not answer the agent's questions.
The district court suppressed the evidence found during the consent search for several reasons. The agent blocked Zapata from leaving his seat and had not told him that he did not have to comply with the agent's requests. In addition, the court was concerned that Zapata had difficulty speaking and understanding English.
The appellate court reversed the district court's decision that Zapata's consent was not freely and voluntarily given. It rejected Zapata's argument that he did not voluntarily consent to the search because of his background and attitudes resulting from his experiences in Mexico. The appellate court stated:
But even assuming some subjective characteristics are relevant to the validity of Mr. Zapata's consent, we reject the notion that his attitude toward police, from whatever source, can constitute such a relevant subjective characteristic. While such attributes as the age, gender, education, and intelligence of the accused have been recognized as relevant, an intangible characteristic, such as attitude toward authority, is inherently unverifiable and unquantifiable. …