Criminal Procedure for the Criminal Justice Professional 10th Edition

1
Criminal Procedure for the Criminal Justice
Professional 10th Edition

• John N. Ferdico
• Henry F. Fradella
• Christopher Totten

Prepared by Carolyn DArgenio
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Consent Searches

• Chapter 9

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Consent Search Exception to the Warrant
Requirement

• A consent search occurs when a person voluntarily
  waives his or her Fourth Amendment rights and
  allows a law enforcement officer to search his or
  her body, premises, or belongings.
• Does not require a warrant
• Does not require probable cause

4
Voluntariness of Consent
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Assessing Voluntariness

• Voluntariness is based on the totality of
  circumstances.
• The prosecutor must show by a preponderance of
  the evidence that the consent was voluntary.

6
Force, Threats of Force, and Other Threats

• Consent to search given in submission to force,
  threat of force, or other show of authority is
  not voluntary.
• Despite the coercive nature of an initial
  confrontation, an officer may still obtain a
  valid consent to search if the consent itself is
  obtained without coercion.

7
Submission to a Fraudulent or Mistaken Claim of
Authority

• A persons submission to a false assertion of
  authority (such as saying there is a warrant when
  there is not one) does not constitute a voluntary
  consent.

8
Misrepresentation or Deception

• Consent to search obtained by misrepresentation
  or deception is not voluntary, except that a
  persons misplaced trust in an undercover police
  agent will not alone invalidate an otherwise
  voluntary consent.

9
Arrest or Detention

• Consent is determined by the totality of
  circumstances, even if the person is under arrest
  or detained.
• Arrested/detained people are viewed as more
  susceptible to coercion.
• If the arrest is illegal, the search is generally
  also considered illegal (fruit of the poisoned
  tree).

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Knowledge of the Right to Refuse Consent

• The Schneckloth RuleKnowledge of the right to
  refuse consent is only one factor among others to
  be considered in determining the voluntariness of
  a consent search.

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Informing Suspects That They Are Free to Go

• The Fourth Amendment does not require that a
  lawfully seized person be advised that he or she
  is free to go before the persons consent to
  search will be ruled voluntary.

12
Suspects Attitude about the Likelihood of
Discovering Evidence

• When a suspect indicates verbally or non-verbally
  to police that they are unlikely to find relevant
  evidence, their attitude towards the search may
  lead to a finding of voluntary consent under the
  totality of circumstances.

13
Clearness and Explicitness of Consent

• Voluntary consent to search may be given in
  writing, orally, or by a persons conduct so long
  as the expression of consent is clear and
  unequivocal.
• Consent need not be expressed in words but may be
  implied from a persons gestures or conduct.

14
Notification of Counsel

• A defendant has no Sixth Amendment right to
  counsel until after the initiation of adversarial
  judicial criminal proceedings.
• Though neither the Fifth Amendment nor Miranda
  require counsel to be notified before consent to
  search is obtained, a person in custody who is
  asked to provide consent should be given Miranda
  warnings.

15
Individual Factors/Personal Characteristics

• Voluntariness of consent may be affected by the
  physical, mental, or emotional condition and the
  intelligence or educational level of the person
  giving consent. These personal characteristics
  alone, however, are generally not enough to
  render consent involuntary.

16
Voluntary Production of Evidence

• If a person voluntarily produces incriminating
  evidence, without any attempt by police to obtain
  consent and without coercion, deception, or other
  illegal police conduct, there is no search and
  seizure, and the evidence is admissible in court.

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Scope of Consent
18
Consent Merely to Enter

• A persons consent to an officers request to
  enter his or her home does not automatically give
  the officer a right to search.
• There is a vital distinction between granting
  admission to ones home for the purposes of
  conversation and granting permission to
  thoroughly search the home.

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Initial Consent vs. Subsequent Consent

• Even if police are granted consent to conduct a
  search after being granted consent to enter a
  residence, such consent is limited to search on
  that particular occasion.
• Consent to enter and search on one occasion does
  not automatically translate into consent to enter
  and search premises on a subsequent occasion.

20
Area of Search

• The scope of a consent search depends on what the
  typical reasonable person would have understood
  by the exchange between the officer and the
  suspect.
• If an officer asks for and obtains consent to
  search a specific area, whether in a place or on
  a person, the officer is limited to that specific
  area. If the search goes beyond that area,
  evidence seized is inadmissible in court.

21
Time of Search

• A person giving consent to search may place a
  time limitation on the search. Also, a court may
  infer a time limitation on the persons consent
  if the role or status of the person changes
  significantly (e.g. from that of concerned spouse
  to that of murder suspect).

22
Object of Search

• If the consenting person places no limit on the
  scope of a consent search, the scope is generally
  defined by its expressed object.
• Law enforcement officers should confine their
  search to only those areas where the object for
  which they have consent to search could possibly
  be located, taking into consideration the size,
  shape, and character of the object.

23
Revocation of Consent

• The person giving consent to search may revoke or
  withdraw that consent at any time after the
  search has begun, although such revocations of
  consent should be clear and unambiguous.

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Who May Give Consent?
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General Guidelines

• In general, the only person able to give a valid
  consent to a search is the person whose
  constitutional protection against unreasonable
  searches and seizures would be invaded by the
  search if it were conducted without consent.

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Third-Party Consent under Actual or Apparent
Authority

• Third-party consents may be valid.
• If a person establishes a reasonable expectation
  of privacy in property, another person may not
  consent to a search of the property.
• A person may specifically authorize another to
  consent to a search of the persons property.
• Consent to search may be obtained from a third
  party whom the police, at the time of entry,
  reasonably believe to possess common authority
  over or other sufficient relationship to the
  premises or effects sought to be inspected.

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Specific Types of Third-Party Consent

• Courts balance peoples reasonable expectation of
  privacy against the actual or apparent authority
  of the third parties in common types of
  relationships including
• Parent-child
• Hotel management-guests
• Hosts-guests
• Landlords-tenants
• Employer-employee
• School officials-students
• Spouses