The Consent Exception to the Warrant Requirement
| Publication year | 1994 |
| Pages | 2105 |
1994, September, Pg. 2105. The Consent Exception to The Warrant Requirement
One exception to the general rule that authorities must obtain a warrant before conducting a search is the consent exception. This article discusses that exception, the procedure for proving that the exception applies and various opinions examining the exception.
In virtually identical language, both the Fourth Amendment to the U.S. Constitution and Article II, § 7 of the Colorado Constitution protect people from unreasonable searches and seizures. Judicial enforcement of this provision did not begin in earnest until this century.(fn1) Enforcement of the provision through the exclusionary rule is designed to deter misconduct by law enforcement officials,(fn2) although it also serves the purpose of maintaining the integrity of the judiciary.(fn3)
A search conducted without benefit of warrant is presumed unreasonable and in violation of the constitutional prohibition.(fn4) The prosecution can overcome this presumption by proving that valid consent was obtained prior to the search.(fn5) A consent to search surrenders the legitimate expectation of privacy protected by the Constitution and waives the warrant requirement.(fn6) If the person to be searched validly consents to the search, there is no police misconduct and there is no justification for excluding evidence obtained in that search.(fn7)
The definition of a search does not include all police intrusions. Simply knocking on a person's door does not amount to a search, since the occupant retains the right not to answer.(fn8) Similarly, a proper investigative detention pat-down of a suspect does not require consent.(fn9)
A defendant may raise a claim that evidence was improperly seized without valid consent by filing a motion to suppress. The defendant may always challenge his or her own purported consent but does not automatically have standing to challenge consent given by another. In People v. Henry,(fn10) the Colorado Supreme Court held that the defendant, who was a passenger in a car that had been lawfully stopped by the police, was not entitled to automatic standing to contest the search of the car conducted with the consent of the owner. The defendant's mere presence in the car did not give him a reasonable expectation of privacy conferring standing to contest the search.(fn11)
Once a claim is raised, the burden is on the prosecution to prove that the consent exception applies.(fn12) The determination of whether consent was given is based on a consideration of the totality of the circumstances.(fn13) These circumstances include the age, intelligence, education and knowledge of the purpose of the search of the person giving consent, as well as any promises, threats, overbearing conduct or misrepresentations by the authorities.(fn14)
The prosecution must prove the existence of consent by clear and convincing evidence.(fn15) Unless the trial court specifically bases its ruling on the Colorado Constitution, appellate courts presume that the ruling is based on the U.S. Constitution.(fn16)
Appellate courts are to accept the factual findings of the trial court as long as they are supported by the record, even when the reviewing court disagrees with the findings.(fn17) In People v. Diaz,(fn18) the Colorado Supreme Court affirmed a trial court order suppressing evidence seized from the defendant when he was arrested and searched in a bar without a warrant. The trial court resolved certain credibility issues in favor of the defendant, made detailed findings that the actions of the police were such as would convince an ordinary person that he or she was under arrest and found that the "request" of the police to search was more in the nature of an order. These findings were supported by the record and the trial court's credibility determinations. The trial court's conclusion that the prosecution failed to meet its burden of proving consent was therefore affirmed.
Trial courts should indulge every reasonable presumption against a waiver.(fn19) Thus, ambiguous or imprecise questions or answers may result in a finding that the prosecution has failed to prove consent. In People v. Thomas,(fn20) a police officer requested consent to search both the defendant and his car in one question. The trial court made a finding that this compound question resulted in an ambiguous answer. The Supreme Court considered itself bound by this finding because it was supported by the record,(fn21)
and affirmed the trial court's suppression order even while strongly hinting that it might have reached a different conclusion had it been sitting as the finder of fact.
Consent must be voluntary. In Schneckloth v. Bustamonte,(fn22) the U.S. Supreme Court held that proof that consent was voluntary requires a showing that there has been "an intentional relinquishment or abandonment of a known right." That Court also has described the prosecution's burden as one of proving "that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority."(fn23)
The Colorado Supreme Court has offered several similar descriptions of the requirement. In People v. Reyes,(fn24) the court held that proof of voluntariness requires proof "... that there was no duress or coercion, express or implied; and that the consent was unequivocal and specific and freely and intelligently given." Similarly, in People v. Savage,(fn25) the court held that a valid consent "must be the product of a free choice and must not be the result of duress, coercion, threats, or promises that are calculated to flaw the free and unconstrained nature of the decision."(fn26) In People v. Thiret,(fn27) voluntariness was described as meaning that the "consent was not the result of duress or coercion, express or implied, or any other form of undue influence exercised against the defendant."(fn28)
The fact that consent is given does not authorize the police to search anywhere or for as long as...
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