5.4.1

• Jurisdiction: Arizona

§ 5.4.1 General Rule

Police do not need a warrant if an individual consents to a search of an item or area. The consent must be knowing and voluntary, and not the product of police coercion. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Officers do not need reasonable suspicion or any other justification to ask an individual for consent. Florida v. Royer, 460 U.S. 491 (1983). See “Voluntariness of Consent,” infra.

The person giving consent can have “actual authority” to consent to the place or item searched (by having joint access or control), United States v. Matlock, 415 U.S. 164 (1974), but all that is required is that, at the time of the search, the officers had reason to believe the person had “apparent authority” to consent. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990); Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006). See also State v. Flores, 195 Ariz. 199, 986 P.2d 232 (App. 1999) (Div. 1) (discussing apparent authority and third-party consent doctrine and cases). The scope of the search must not exceed the scope of consent, and police must honor any withdrawal or narrowing of consent. Matlock, supra. See “Apparent Authority” and “Scope” sections, infra.

1. Voluntariness Presupposes Innocent Person. The voluntariness of consent presupposes an innocent person, so the argument that no reasonable person would have consented to the search of an item or area which he knows contains contraband should not be considered. Florida v. Bostick, 501 U.S. 429, 437-38 (1991) (“We do reject, however, Bostick’s argument that he must have been seized because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the ‘reasonable person’ test presupposes an innocent person.”) (emphasis in original).

2. Adequacy of Consent & Implying Consent. “In determining whether or not there was a consent, it is necessary that such a waiver or consent be proved by clear and positive evidence in unequivocal words or conduct expressing consent . . .” State v. Cañez, 202 Ariz. 133, 151, 42 P.3d 564, 582 (2002). In Cañez, officers walked up to the house, Cañez,’ wife answered the door, and they asked to see Cañez. When he did not appear promptly, the officers followed his wife into the house. When asked at the hearing whether the wife invited him in, the officer stated: “She never said the words come in, I said something about coming in, she turned and walked back into her house and I followed her in.” Id. The Arizona Supreme Court found...