Consent searches are searches made by United States law enforcement personnel based on the consent of the individual whose person or property is being searched.
In the U.S., the simplest and most common type of warrantless searches are searches based upon consent. No warrant or probable cause is required to perform a search if a person with the proper authority consents to a search.
A consent search requires the individual whose person or property is being searched to freely and voluntarily waive his or her Fourth Amendment rights, granting the officer permission to perform the search. The person has the right to refuse to give consent, and except in limited cases may revoke consent at any point during the search. In addition, the prosecution in any trial using the search results as evidence is required to prove that the consent was voluntary and not a result of coercion.
However, in contrast to Miranda rights, officers conducting a consent search are not required to warn people of their right to withhold consent in order for consent to be valid, as determined by the U.S. Supreme Court in Schneckloth v. Bustamonte. Nor are they required to conduct a search in a way that gives the individual an opportunity to revoke consent, as determined in United States v. Dominguez, where the court rejected the argument that “officials must conduct all searches in plain view of the suspect, and in a manner slowly enough that he may withdraw or delimit his consent at any time during the search.”
The person conducting the consent search does not necessarily have to be identified as a law enforcement officer, and the person granting consent need not be the person police suspect or ultimately charge.
In cases such as Lee v. United States, Lopez v. United States, and Hoffa v. United States, the courts have ruled that evidence found in searches based on consent obtained by an undercover officer or as an informer to be admissible.
And a third party can in some limited cases grant consent. The person needs to possess or be believed by the searching officer to possess “common authority over or other sufficient relationship to the premises or effects sought to be inspected.”
Revoking consent and exceptions
Consent can be revoked at almost any time during a consent-based search. If consent is revoked, the officer or officers performing the search are required to immediately stop searching. However, the right to revoke consent is not recognized in two cases: airport passenger screening and prison visitation.
Once consent to search is given, an individual may withdraw consent with an “unequivocal act or statement of withdrawal.” Consent may be withdrawn by statements, actions, or a combination of statements and actions. In United States v. Bily, the court found that Bily's statement to the agents of “That’s enough, I want you to stop,” was a revocation of consent. And in United States v. Ho, the U.S. Court of Appeals for the Fifth Circuit found that Ho's attempts to retrieve his portfolio from the officer during a search constituted a revocation of his earlier consent to search. In this decision the court recognized his acts constituted a valid revocation of consent.
However, the revocation of consent must clearly be a statement revoking consent: an expression of impatience or dislike is not sufficient to terminate consent. For example, in United States v. Gray, the U.S. Court of Appeals for the Eighth Circuit found that Gray did not revoke consent with the statements “[t]his is ridiculous,” and “how long [is] the search going to take.” The district court found that while Gray and his passenger had made “protests to leave,” “there was no specific request to leave, and under the circumstance,... [the officer] was reasonable in continuing the search.”
Exceptions to revoking consent
Most courts have found the right to revoke consent is removed once a passenger has begun X-ray screening. In United States v. Herzbrun, the U.S. Court of Appeals for the Eleventh Circuit found Herzbrun “had no constitutional right to revoke his consent to a search of his bag once it entered the X-ray machine and he walked through the magnetometer.” And in United States v. Pulido-Baquerizo, the court explained that “[a] rule allowing a passenger to leave without a search after an inconclusive X-ray scan would encourage airline terrorism by providing a secure exit where detection was threatened.”
A similar argument is applied to searches of prison visitors in United States v. Spriggs. As long as a prison visitor is warned that all visitors will be searched and consents to the search, consent can not be revoked once the search has begun. Allowing consent to be withdrawn, the court reasoned, would encourage the smuggling of contraband into prisons by providing a secure escape to the smuggler.
During the course of a search an officer may develop reasonable suspicion or probable cause; once this has been developed the individual loses the right to revoke consent. However, in United States v. Fuentes, the court found the “[m]ere refusal to consent to a stop or search does not give rise to reasonable suspicion or probable cause.”
- Moenssens, A. A. (2005). Forensic-Evidence.com: Police Procedures /The Validity of Consent Searches. Retrieved August 14, 2006, Web site: http://www.forensic-evidence.com/site/Police/nonverbalconsent.html[dead link]
- Holcomb, J. W. (March 2003). Obtaining Written Consent to Search. FBI Law Enforcement Bulletin, 72, Retrieved August 14, 2006, from http://www.fbi.gov/publications/leb/2003/mar2003/mar03leb.htm#page_27
- Holcomb, J. W. (Feb 2005). Revoking Consent to Search. FBI Law Enforcement Bulletin, 74, Retrieved August 14, 2006, from http://www.fbi.gov/publications/leb/2005/feb2005/feb2005.htm
- Retrieved August 14, 2006, from FindLaw: U.S. Constitution: Fourth Amendment: Annotations pg. 4 of 6 Web site: http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html