Pardon Me, May I ...? Consent Searches in Kansas

JurisdictionKansas,United States
CitationVol. 83 No. 4 Pg. 25
Pages25
Publication year2014
Pardon Me, May I ...? Consent Searches in Kansas
83 J. Kan. Bar Assn 4, 25 (2014)
Kansas Bar Journal
April, 2014

Colin D. Wood

[25]

“In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion.”[1]

A police officer, in full uniform with her holstered handgun in plain view standing with others at the coffee counter of a corner convenience store, turns to one of the other customers and in a pleasant, conversational voice, but without any suspicion of criminal activity, asks permission to search the customer’s pockets. The other customer agrees. A search reveals evidence of a crime. The evidence is later admitted against the customer and newly-minted defendant.

Surely a search cannot be valid simply by a verbal agreement between the two of them. This is America. Where was the government agent’s probable cause? . . . the warrant? . . . and especially where was the disinterested magistrate to review the constable’s suspicions? If that can happen, what’s next? . . . my mother showing state agents into my rent-free bedroom based simply upon my ill-advised failure to move out 20 years ago, and my continuing to allow her to put away my laundry and clean up my messy room? Oh, the humanity.

The scholarly answer to those questions is “volenti non fit iniuria, ” Latin for “[t]o a person who consents, no injustice is done.”[2] The less scholarly advice is to simply say more often, “no” and “stay out.” It has long been the rule of law in both federal and state courts that a person may consent to a search or to a seizure.[3] The Fourth Amendment proscribes unreasonable searches and seizures, but it does not proscribe a person’s voluntary cooperation.[4] A law enforcement officer needs no level of criminal suspicion to approach anyone in a public place, without formalities, and to seek their consent to do just about anything.[5] And, though maybe a good idea, prior to requesting consent the officer need not inform the person of their right to refuse the officer’s request.[6] In fact, even if the officer possesses probable cause and has time to secure a warrant, the officer need not go to the trouble.[7]

This article is intended as a practical review of the most-litigated areas of consent search law. By design the article breaks no new ground, it certainly does not get into the weeds about any particular issue, nor does it pretend to raise every facet of consent. However, for having invested a few minutes a reader should be able to become generally familiar with how consent matters are handled in our Kansas courts. The author candidly admits his professional support for the idea of a legally-obtained consent to search.

Under the Fourth Amendment, a law enforcement search conducted without a warrant is per se unreasonable unless it meets one of the several recognized exceptions to the warrant requirement. One of those exceptions is consent.[8] Surprisingly, consent searches are a recent legal phenomenon. Most scholars trace the first consent-related case to 1921, [9] with a second following 25 years later.[10] It was not until 1973 that the United States Supreme Court set the relatively low standard for a valid consent search. In the 21st century, consent searches remain the source of interesting legal debate.[11]

Judges and scholars are divided into three camps when it comes to explaining why consent searches are valid under the Constitution. First, and the majority view of the U.S. Supreme Court, is that a consent search is an exception to the warrant and probable cause requirements of the Fourth Amendment because it is essential to proper law enforcement. A second view, for example held by Justice Marshall, is that under consent there is no “search” for Fourth Amendment purposes because the consenting person is able to choose whether or not to exercise their constitutional rights. The third view, adopted by Justice Scalia, asserts that the validity of a consent search depends upon whether the police conduct surrounding the seeking of consent was reasonable, because reasonableness is the touchstone of the Fourth Amendment.[12]

The questions raised in a routine consent case tend to be: Was there a request by law enforcement for consent to [26] search? If there was a request, to whom was it directed? Did that person have the capacity and the authority to give consent? Assuming sufficient authority, did that person give consent? Was the consent given expressly or impliedly? Was such express or implied consent voluntary? If voluntary, what was the scope of the search to have been? Did the officer stay within that scope? If not, why not? Did the consenter ever broaden, narrow, or withdraw the consent? Was the consenter in a position to have modified the scope of the search? If not, why not? During the consent request, was the consenter being detained in some manner? And, finally, if the officers have blundered along the way, should the Exclusionary Rule suppress the evidence?

I. Voluntariness

[T]his Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation . . .[13] Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions.”[14]

As a practical matter, permission to conduct a consent search will pass muster if it was freely and voluntarily given.[15] But consent that was the product of official intimidation or harassment is not consent at all because citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.[16] Nor is mere submission to apparent police authority true consent.[17]

Although detention is a factor in weighing whether a particular consent was voluntary, and even though in Kansas a particular type of detention may render a particular consent to search legally void, the test for detention is separate from the test for voluntariness of the consent to search.[18]

The prosecutor has the burden of proving by a preponderance of the evidence that consent was given, and that it was voluntary.[19] The question of whether a person’s consent to an officer’s request to search was in fact voluntary or was the product of duress or coercion is a question of fact to be determined from the totality of all the circumstances.[20] But, as the starting point of analysis, courts recognize that simply by asking for consent an officer has implied that the person may object and would therefore indicate to a reasonable person that he or she is free to refuse.[21] In other words, the review of a consent search is to begin on a level playing field.

Although recognizing that it is obligated to follow the U.S. Supreme Court’s interpretation and application of the Fourth Amendment, [22] Kansas courts sometimes frame it a little differently: “[f]or a consent to search to be valid, two conditions must be met: (1) there must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied;[23] “voluntarily, intelligently and knowingly”;[24] and “unequivocal and specific.”[25] It follows that even though phrased differently, our state courts have not raised the prosecution’s burden beyond that required by the U.S. Supreme Court.[26]

When seeking consent to search, a law enforcement officer is not required to advise the potential consenter of the right to refuse, and actual knowledge of the right is not a prerequisite of a voluntary consent.[27] However, advising or failure to advise one of the right to refuse is a factor a court may take into account when weighing voluntariness.[28] It is also unnecessary to have advised a consenter, not then in arrest custody, of his or her Miranda rights.[29] The subjective thoughts or underlying intentions of an officer seeking consent are irrelevant to the analysis, as long as the substance of the officer’s thoughts and intentions are not made known to a consenter prior to their consent.[30] The use of deception or trickery is a factor to be weighed, but its use does not automatically render consent involuntary.[31] A threat to obtain a warrant may invalidate a suspect’s eventual consent if the officers truly lacked the probable cause necessary for the search warrant.[32] Further, a suspect’s consent may be tainted by a threat of detention, which essentially amounts to an arrest, if consent is refused.[33]

When analyzing whether duress was present or coercion had occurred during the granting of consent, no one factor is dispositive, and the factors are much the same as those used to determine if an encounter with police was consensual.[34] A non-exhaustive, non-exclusive list of the objective factors used by our courts in the determination of voluntariness of consent to search are: telling the consenter that he or she can refuse, the presence of more than one officer, the actual brandishing of a weapon (because it is well known in our society that most officers are armed, the presence of a holstered firearm is unlikely to be coercive[35]), touching or application of force, a commanding tone of voice or use of aggressive language indicating that compliance is required (although some officer safety commands are acceptable[36]), retention of the person’s personal property, a request to accompany the officer to another...

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