Consent searches are searches made by law enforcement personnel in the United States 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. Where consent is obtained through "deception" on the part of government personnel, the search may be determined to be an unreasonable search in violation of the Fourth Amendment.
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.
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. Police are not required to conduct a search in a way that gives the individual an opportunity to revoke consent, as determined in United States v. Rich, where the U.S. Court of Appeals for the Fifth Circuit 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.
A party other than the defendant can, in some limited cases, grant consent. The consenting party needs to actually 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.” For example, the U.S. Supreme Court in United States v. Matlock held that co-occupant of a house had actual authority to consent to a search of the house. In Illinois v. Rodriguez, the Supreme Court held that a search was valid if the police reasonably believed that the party giving consent had actual authority over the premises, but were incorrect in their belief. When two co-occupants are present, and one consents to a search but the other expressly objects, the Supreme Court has found that the police cannot validly search the premises. However, if the objecting party is subsequently lawfully arrested and removed from the premises, the Court has held in Fernandez v. California that the police may search with the consent of the co-occupant remaining on the premises.
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, a federal district 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. Al Doc 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, for example, 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 cannot 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.”
- Burke, Alafair S. (January 2016). "Consent Searches and Fourth Amendment Reasonableness". Florida Law Review. 67 (2): 509. Retrieved 22 July 2017.
- 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
- Sutherland, Brian A. (2006). "Whether Consent to Search Was Given Voluntarily" (PDF). New York University Law Review. 81: 2192. Retrieved 22 July 2017.
- United States v. Tweel, 550 F.2d 297 (5th Cir. 1977), citing Gouled v. United States, 255 U.S. 298 (1921).
- 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
- Ferdico, John N.; Fradella, Henry F.; Totten, Christopher D. (2016). Criminal Procedure for the Criminal Justice Professional (2 ed.). Cengage Learning. ISBN 9781305261488.
- United States v. Rich, 992 F.2d 502, 507 (5th Cir. 1993)
- United States v. Matlock, 415 U.S. 164 (1974)
- Illinois v. Rodriguez, 497 U.S. 177 (1990)
- Georgia v. Randolph, 547 U.S. 103 (2006)
- Fernandez v. California, 134 S. Ct. 1126 (2014)
- United States v. Biley, 406 F. Supp. 726 (1975)
- United States v. Al Doc Ho, 94 F.3d 932 (1996)
- United States v. Gray, 369 F.3d 1024 (2004)
- United States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984)
- United States v. Pulido-Baquerizo, 800 F.2d 899 (9th Cir. 1986)
- United States v. Spriggs, 827 F. Supp. 372, 373 (E.D. Va. 1993)
- United States v. Fuentes, 105 F.3d 487 (9th Cir. Jan. 21, 1997)