Fourth Amendment Consent Searches.

The Fourth Amendment protects people against unreasonable searches and seizures. This means before police conduct a search, they need two things. First, they need probable cause they will find evidence of a crime. Second, they need to get a search warrant. In short, police need a warrant before they search a person, place, or thing.

However, there are exceptions to the warrant requirement. And consent searches are one of these exceptions. Further, as we will see below, police frequently uses these types of searches on a daily basis.

Unfortunately, consent searches also cause real problems for private citizens. In particular, consent searches can lead to an arrest, a conviction, and a jail term. But to see how this happens, we first need to explain what consent searches are and how they work.

What are Consent Searches and how do they work?

Consent searches are police searches done with a person’s permission. They allow police to search a person, place, or thing without either probable cause or a warrant. In other words, if a person give police permission to search, then police can search even if they do not have legal grounds to do so.

Furthermore, police get consent by simply asking if they can look around. For example, a police officer may ask a motorist, “Do you mind if I look in inside your car?” Likewise, a police officer can ask to look in your gym bag, purse, or even your cell phone. If you say yes, then police can search without a warrant or probable cause.

Above all, if police find evidence of a crime, then the officer can arrest you and charge you with a crime. This can lead to tragic results. Some people serve years in jail on drug or gun charges simply because they give police permission to search their cars or bags.

The good news is that a person can avoid this situation by simply knowing his or her rights. And the first question he or she should ask is this: “If I give police permission to search, then where can they look?” Courts call this the scope of the search.

What is the Scope of a Consent Search?

The scope of a consent refers to the range or extent that police can search. That is to say, the scope of the search tells police how far they can go to look around. And the scope will depend on the facts of each case.

In particular, courts review the facts objectively. To do this, courts ask two questions. First, what was the officer looking for? Second, did the person place any limits on the search? Critically, the conversation between the officer and the person will outline the scope of the search.

As an example, let’s consider a traffic stop. The officer may first ask the driver a series of questions. The officer can ask the driver if he is carrying “anything illegal” and then ask for permission to search. In this situation, if the driver says yes, then he gave police general consent to search.

This is because the driver placed no limits on the search. For instance, the driver could have told the officer: “You can look in the back seat, but not in the trunk of the car.” In short, this statement places a limit on where the officer can look.

In addition, general consent searches are the broadest form of a consent search. It allows police to look everywhere in the car. This includes looking in containers found in the car such as bags or luggage.

Can you Deny, Limit, or Revoke your Consent to Search?

As we mentioned above, a person can always limit the scope of a consent search. But in addition, he can also revoke consent after he or she gives it. Or a person can simply decline an officer’s request to search.

Therefore, this gives a person three options:

  1. Decline consent. Politely tell the officer he does not have your permission to search your car, bag, or home. This is usually the best option in most situations;
  2. Give limited consent. Tell the officer he can search in one area, but not another. For example, allow the officer to 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 either general or limited consent to search, he or she can revoke consent and ask the officer to stop searching.

In sum, a person can decline an officer’s request to search. Or he can set boundaries on what and where to search. However, if he consents without limiting the scope of the search, then the officer may conduct a general search.

Can you file a Motion to Suppress on a Consent Search?

Yes. The main issue with consent searches is to find out if the person freely and voluntarily gave police consent to search. in other words, the prosecutor must show police did not unfairly pressure the person to consent to a search.

The case law is clear on this point:

[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).

To conclude, the voluntariness of a consent search is a fact question. And the burden is on the government to provide proof that police did not force the person to give permission to search his person, papers, or effects. Consequently, a person pressured by police to consent can file a motion to suppress the search.

What are the Voluntariness Factors courts look at to see if a consent search is valid?

Courts use a multi-factor test to see if a person gave voluntary consent to search. The factors include the following:

Voluntariness Factors for a Consent to Search

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

    Was the person arrested when he consented to a search? Or was he or she free to leave?

  2. The presence of coercive police procedures;

    Did the person consent at gunpoint? Or was he in handcuffs when he consented?

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

    Did he cooperate with police.

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

    A person can deny consent. Unfortunately, most people are not aware of this option. And police usually do not tell the person of his right to refuse consent.

  5. The person’s education and experience; and

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

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

    Sometimes a person agrees to a search believing police will find nothing incriminating. [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 brief, if a suspect voluntarily consented, then the search is legit. If not, then courts will exclude the evidence unless the government can find another reason to admit the evidence. Other exceptions that may apply include the independent source doctrine, the inevitable discovery doctrine, or the attenuation of the taint doctrine.

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