2.5.2 Consent Searches

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

2.5.2 Consent Searches

Relinquishment of the Fourth Amendment right to be free from unreasonable searches turns on whether the government can show that consent to search was given voluntarily.⁹⁹ The government is not, however, required to demonstrate that the consenting party was aware of the right to refuse a request to search.¹⁰⁰ "[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances."¹⁰¹ One obvious situation in which coercion is likely to be found is when the police claim lawful authority to search an area and an individual consents by submitting to this claim. Police officers make an invalid claim of lawful authority to search when they falsely announce that they have a warrant, when they assert that a warrantless search would be proper in a circumstance when it is not,¹⁰² and when they improperly threaten to get a warrant if consent is not given.¹⁰³

In determining voluntariness, courts take into consideration the characteristics of the person giving consent. Relevant factors include whether the person was immature and impressionable in general¹⁰⁴ and whether he was in an excited mental state,¹⁰⁵ was mentally incompetent,¹⁰⁶ or was under the influence of drugs or alcohol at the time that consent was given.¹⁰⁷ Also relevant to the voluntari-ness inquiry is the recent behavior of the individual. If a person had earlier refused consent, a court will more likely find that the consent ultimately given was involuntary.¹⁰⁸ If an individual was generally open and helpful in response to police inquiries, then a court may well find consent to be voluntary.¹⁰⁹ In all instances involving consent, the prosecution retains the burden of proving that consent was voluntarily given¹¹⁰ and was not later withdrawn.¹¹¹ The standard on appeal is that a trial judge's determination will not be reversed unless "clearly erroneous."¹¹²

Even if the consent as to the Fourth Amendment right is voluntary, there may still be questions about its validity. For example, consent to search an individual's property may be given by a third party if that party possesses "common authority over or other sufficient relationship to the premises or effects sought to be inspected,"¹¹³ or if officers reasonably, albeit incorrectly, believe the person consenting to a search has such authority.¹¹⁴ In 2006, the Supreme Court resolved a vexing question as to consent given by one occupant of a residence when the search was directed against another occupant. There the Court acknowledged that consent is valid when approval is given by an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant. The question at issue, though, was whether the consent would be valid if the co-occupant, who later sought to suppress the evidence, was present at the scene and expressly refused to consent. Held, "a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to...