§ 16.03 VOLUNTARY CONSENT

• Jurisdiction: United States

§ 16.03. Voluntary Consent²⁸

[A] Voluntariness: In General

Consent is legally ineffective unless the person granting consent does so voluntarily, rather than as "the result of duress or coercion, express or implied."²⁹ The burden of proof is on the prosecutor to demonstrate by a preponderance of the evidence that consent was freely given.³⁰

The Supreme Court has stated that there is "no talismanic definition of 'voluntariness.' "³¹ "Voluntariness" is determined from the totality of circumstances of the individual case.³² As with other applications of the totality-of-the-circumstances test,³³ there is no limit to the factors that may be considered. Among the factors that arguably could demonstrate coerced consent are: (1) a show of force by the police, such as a display of guns, that would suggest to the person that he is not free to refuse consent; (2) the presence of a large number of officers, which may suggest to the person "that the police are contemplating an undertaking which does not depend upon the cooperation of the individual";³⁴ (3) repetitive requests for consent after an initial refusal; and (4) evidence relating to the consenting person's age, race,³⁵ sex, level of education, emotional state, or mental condition, that suggests that his will was overborne by the officers' conduct.

Despite the plethora of potentially relevant factors, courts rarely find consent involuntary. The probable reason for this is that courts do not view the voluntariness issue as an empirical one. That is, the real issue is not whether the particular defendant's will to refuse consent was overborne, even though many of the factors noted above would suggest that this is the issue. Nor is the test whether an average person in the defendant's shoes would have felt compelled.³⁶

In reality, the concept of "voluntariness" is a normative one. The real issue is whether the police methods of obtaining consent are morally acceptable in light of law enforcement goals. This explains why the Court has observed that "voluntariness" is an "amphibian"³⁷ notion, "reflect[ing] an accommodation of the complex of values implicated"³⁸ in the police-citizen encounter. The perceived need for consent searches as a means of obtaining "important and reliable evidence"³⁹ of guilt colors the analysis: courts are prone to find that consent was voluntarily granted in the absence of police conduct that shocks judicial sensibilities.

[B] Claim of Authority by the Police

The Supreme Court held in Bumper v. North Carolina⁴⁰ that a state may not meet its burden of proof that consent was voluntarily granted "by showing no more than acquiescence to a claim of lawful authority." Specifically, Bumper states, consent is invalid when it "has been given only after the official conducting the search has asserted that he possesses a warrant." Such a situation "is instinct with coercion—albeit colorably lawful coercion."

On its face, Bumper provides a bright-line rule: If an officer asserts authority to conduct a search on the basis of a warrant, whether that warrant is valid, invalid, or nonexistent, consent granted as a result of that assertion is invalid. Such a per se rule, however, conflicts with the totality-of-circumstances doctrine ordinarily applied in consent cases. And, indeed, lower courts have not usually treated the acquiescence-to-authority doctrine as if it were categorical.⁴¹ For example, if D indicates to the officer asserting authority, "You needn't have brought a search warrant. You are welcome to search,"⁴² the consent may be legally effective, on the ground that D's statement indicates that his consent was not linked to the officer's claim of authority.

The ruling in Bumper has not been discredited, but it is worth observing that it was decided in 1968, during the peak of the Warren Court era, and the facts of the case—including the Supreme Court's description of the citizen as a "66-year-old Negro widow" confronted by four North Carolina (presumably white) law enforcement officials—suggests that this case may have been as much about civil rights as it was about Fourth Amendment consent law in the minds of the justices.

[C] Police Deception

Police officers sometimes use deception to obtain consent to search. Often the deception relates to the identity of the person seeking consent. That is, an undercover officer will actively misrepresent or fail to disclose his true identity in order to gain admission onto premises where he can observe activities or conduct a search. As discussed elsewhere,⁴³ the Supreme Court in a long line of cases, beginning in the pre-Katz⁴⁴ "trespass" era and continuing into modern times, has held that when A talks to B or invites him into an otherwise constitutionally protected area, A assumes the risk that B is not whom he purports to be. Put differently, consent is not vitiated by the fact that, but for the misrepresentation or nondisclosure of a police officer's identity, the person would not have granted consent to the undercover officer to enter the individual's premises.

A different form of deception occurs when an officer deceives an individual regarding the purpose of a requested police search. Sometimes, a court will invalidate consent given in such deceptive circumstances, but the deception itself may not actually explain the outcome. For example, in United States v. Dichiarinte,⁴⁵ the police obtained consent to search D's premises by explaining...