Obtaining Written Consent to Search. (Legal Digest)
Holcomb, Jayme Walker, The FBI Law Enforcement Bulletin
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) It is well settled that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." (2) 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. (3)
In Schenkloth v. Bustamonte, (4) the U.S. Supreme Court ruled that a court reviewing whether an individual voluntarily consented to a search must consider the totality of the circumstances surrounding the consent. An individual need not provide written consent for a search of his or her person or property to a law enforcement officer for a consent search to be valid. Even though a writing is not legally required, law enforcement officers often will ask an individual for written consent to search to provide evidence of voluntariness.
This article considers the particular issues that courts analyze regarding written consent to search. These issues include the evidentiary significance of a written consent to search form, the presentation of a consent to search form to an individual, the impact of a person's refusal to sign a written consent to search, and the content of consent to search forms.
The government has the burden of proving that an individual voluntarily consented to a search. (5) The presence of a writing reflecting that an individual consented is, therefore, quite significant, (6) and evidence that an individual signed a statement of consent to a search has been found to be a clear indication of voluntariness. (7) The lack of a writing memorializing a consent to search also may be noted by a court, (8) as may the failure of an officer to use an available written consent form. (9) One court has stated, "[o]f course, a written consent to a search is not a legal requirement, but law enforcement officers fail to obtain a written consent when one readily could be obtained at the risk that the government's ability to prove the voluntariness of a consent will be seriously compromised." (10)
The decision by the U.S. Court of Appeals for the Seventh Circuit in United States v. Duran" (1) is an excellent example of the role a signed written consent can play in a court's analysis. In Duran, Cesar Duran's wife, Karen, took a pair of new tennis shoes back to a shoe store to obtain help lacing them. Karen left the shoes with a store employee and went shopping elsewhere in the mall. The store employee discovered three packages of what appeared to be marijuana in the shoes and called the police. The police arrived at the store and determined that the packages did contain marijuana. The police arrested Karen when she returned to the store. The officers also found $3,000, a small amount of cocaine, and drug paraphernalia in her purse. The officers read Karen her Miranda warnings and took her to the police station.
At the police station, Karen told the officers where she lived and admitted that her husband sold large quantities of marijuana in the local area. Karen also signed a form consenting to a search of the Duran residence, an old farmhouse on the property, and several outbuildings. The police arrested Cesar after finding 28 pounds of marijuana and a number of weapons during the search.
In considering Cesar's challenge to Karen's consent to search, the Duran court specifically pointed to the consent form signed by Karen. The court rejected Cesar's argument that the fact that this was Karen's first arrest should be given weight, noting that the form's language stating that she could refuse to consent and that any evidence discovered could be used against her put her on par with an experienced arrestee in terms of what she needed to know. …