Fourth Amendment Consent Searches

The Fourth Amendment protects citizens against unreasonable searches and seizures by law enforcement. U.S. Const. amend. IV; United States v. Kelly, 302 F.3d 291, 293 (5th Cir. 2002). That means before conducting a search, a police officer must: (1) have probable cause to believe that contraband or evidence of a crime will be found in a particular place; and (2) obtain a search warrant. United States v. Rounds, 749 F.3d 326, 338 (5th Cir. 2014). Consent searches are an exception to this requirement.

In this post, we will define consent searches, how they work, and issues that arise during consent searches. Finally, we will discuss why it is usually a bad idea to consent to a police search.

What are Fourth Amendment Consent Searches?

Consent searches refers to searches made by police with the suspect’s permission. See Florida v. Jimeno, 500 U.S. 248, 250 (1991). These searches give police permission to search a person, place, or thing without a warrant or probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002).

Police obtain consent by asking a suspect for permission to search a person, place, or thing. For example, if an officer wants to search your car during a traffic stop, he may ask “do you mind if I look inside your car?” Likewise, an officer can ask to search your cellphone, purse, gym bag. If the suspect says yes, then he or she is giving the officer permission to search without probable cause or a warrant. So now let’s discuss the limits of a consent search.

Scope of Consent Search

The scope of a consent search refers to the extent, breadth, and range of the police search. That is to say, the scope of the search means how far police can go to conduct a search. To determine the scope of the search, courts look to the facts of each case.

Specifically, when conducting a consent search, police officers have no more authority to search than it appears was given by suspect. See United States v. Garcia, 604 F.3d 186, 190 (5th Cir. 2010). In other words, “[t]he scope of consent is determined by objective reasonableness–what a reasonable person would have understood from the exchange between the officer and searched party–and not the subjective intent of the parties.” Id.

So for example, if a motorist gives police consent to “look inside” a vehicle, then police have permission to search the vehicle and its contents, including containers such as luggage. See United States v. Crain, 33 F.3d 480, 484 (5th Cir. 1994). In short, consent searches place the burden on suspects to limit the scope of a consent search.

Denying, Limiting, or Revoking Consent to Search

The good news is that a suspect can always limit the scope of a consent search or revoke consent after he or she gives it. See Mason v. Pulliam, 557 F.2d 426, 428 (5th Cir. 1977) (Noting that the Fourth Amendment allows a defendant to limit, qualify, or withdraw his consent to search). A suspect can also simply decline an officer’s request to search.

The Supreme Court allows a suspect to place limits or boundaries on the scope of a consent search. But if the suspect does not limit the scope of the consent search, then police can conduct a general search:

A suspect may of course delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization.

Florida v. Jimeno, 500 U.S. 248, 251 (1991).
The Fourth Amendment allows police to conduct consent searches.  And if a person agrees to a consent search, then police do not need probable cause for the search.
The Supreme Court and the Fifth Circuit Court of Appeals allow police to conduct consent searches if a suspect gives permission.

Therefore, this gives a suspect several options to consider in deciding if he or she should consent to a search:

  1. Decline consent. Politely tell the officer he does not have your permission to search;
  2. Give limited consent. Tell the officer he can search the trunk of your car, but not any bags, suitcases, or containers found in the trunk; or
  3. Revoke Consent. After a person gives consent to search, he or she can revoke consent and ask the officer to stop searching.

In conclusion, a person can decline an officer’s request to perform a consent search. A suspect can also set boundaries on the scope of a consent search. However, if a suspect consents to a search without limiting the scope of the search, then the officer may conduct a general search.

A Common Fourth Amendment Scenario: Traffic Stops

Police use consent searches as standard investigatory techniques. This technique is legal. Fernandez v. California, 571 U.S. 292, 298 (2014). This allows police to use consent searches in a wide variety of situations, including traffic stops.

During routine traffic stops, police frequently ask motorists if they “can look around” or “look inside” the motorist’s vehicle. If the motorist says yes, then police can conduct a general search of the vehicle and the containers inside. These types of searches frequently turn up contraband such as drugs, firearms, or other illegal items.

This scenario can have tragic consequences. It can lead to an arrest and prison sentence for a felony drug or gun possession charge. The arrest and conviction can also disqualify a suspect from receiving government benefits. Or, it could cause a suspect to be placed into deportation or removal proceedings. For these reasons, it is generally not a good idea to consent to a search without speaking to an attorney first.

Because the consequences of a consent search may be severe, a suspect may wish to file a motion to suppress. The motion to suppress would challenge, among other things, whether the suspect voluntarily gave police permission to search. However, whether or not to file a motion to suppress will depend on the facts of the case.

Motion to Suppress: Voluntariness of Consent Searches

The government must prove a defendant voluntarily consented to a search:

[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taking into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.

Schneckloth v. Bustamante, 412 U.S. 218, 248-249 (1973).

Translation: the courts will look at the totality of the circumstances to determine if the suspect voluntarily consented to the search.

Voluntariness Factors to Consider

In addition, courts use a multi-factor test to determine if consent was voluntarily given:

Voluntariness Factors for a Consent to Search

  1. The voluntariness of the defendant’s custodial status;

    Was the defendant under arrest when he consented to a search or was he free to leave.

  2. The presence of coercive police procedures;

    Did the suspect consent at gunpoint? Was the suspect in handcuffs when he consented?

  3. The extent and level of the defendant’s cooperation with police;

    Sometimes a defendant cooperates himself into jail.

  4. The defendant’s awareness of his right to refuse consent;

    Some police departments and agencies provide suspects with a written waiver that documents his or her consent to search. However, most government agencies do not. And, unfortunately, this practice is allowed by the courts.

  5. The defendant’s education and experience; and

    Does the suspect have advanced degrees in law, science, or medicine? Or does the suspect have a humble background?

  6. The defendant’s belief that no incriminating evidence will be found.

    Sometimes suspect agree to a search believing that police will never find incriminating evidence. [Note: If there are illegal items in a location or place, then a suspect should never consent to a search. In this scenario–the suspect is better off declining to consent to a search and forcing the officer to develop probable cause and obtain a warrant.]

In short, if a suspect voluntarily consented, then the search is legit. If not, then the evidence will be excluded at trial unless the government can find another reason to admit the evidence. Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016). Other exceptions that may apply include the independent source doctrine, the inevitable discovery doctrine, or the attenuation of the taint doctrine. See id. I will discuss these other exceptions in a different blog post.

San Antonio Criminal Defense Attorney

Consent searches are a powerful law-enforcement tool police use to investigate crimes. These searches give police wide latitude to search a person, place, or thing without either probable cause or a warrant. For this reason, it is generally not a good idea to consent to a search without first speaking with an attorney. It is also important for citizens to be aware of their rights so they can invoke them if they are ever in this situation.

Genaro R. Cortez

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578
Email: genaro.cortez@cortezlawyer.org