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Consent to Search (podcast transcript)

Miller: Jenna, we’re back. Of course we’re talking about these exceptions to the probable cause and warrant requirement. I’d like to talk a little bit about consent. Are you ready to do that?

Solari: Not quite yet. I think we’ve discussed a lot of law so far Tim and now might be a good time to apply some of it. So, let’s do some hypothetical scenarios. Let’s assume we’re federal agents and we’ve completed a search warrant application and based on that application, a Federal Magistrate in the district where the place to be searched is located has authorized us to search. The particular place is 123 Main Street here in Brunswick. The particular item to be seized is cocaine. Now, we’ve got ten days to execute the warrant and since it’s a search for controlled substance, we know we can execute it day or night. So, now we’re in front of 123 Main Street; how are we going to get inside?

Miller: We either have to comply with 18 U.S. Code §3109, “Knock and Announce” or we have to be able to articulate some facts that will justify not doing so. We do not have to comply with Knock and Announce if we have facts that support a conclusion that doing so would pose a danger to us or result in destruction of the evidence. Is that true?

Solari: That is; but, let’s assumes we can’t articulate those facts - to do away with knock and announce. What should we do?

Miller: Well we’re going to have to Knock, Announce our identity, authority and purpose and demand entry. We’re going to have to Knock, of course, say we’re “federal agents”; that we have a “search warrant,” and “open the door.”

Solari: Alright great. Now how long do we have to wait after we do that?

Miller: A reasonable period. The period is contingent on the facts, such as the size of the premises, the stuff we’re looking for, and of course the time of day. Assuming this a small house or a two bedroom apartment and we’re executing our search in the afternoon, I think 10 or 15 minutes should be long enough for this guy to get to the door.

Solari: Alright 10 or 15 minutes or 10 ????

Miller: Ah, 10 or 15 seconds.

Solari: Okay.

Miller: I’m sorry

Solari: Okay, well I agree with you there. Let’s say nobody answers, it’s been 10 or 15 seconds, and nobody’s come to the door.

Miller: Then we can assume the occupant has refused entry and we can force the door open.

Solari: I’m still with you. So once we’re inside let’s assume we find two people. They’re standing around a coffee table and on the coffee table is a baggy containing a white powder that we suspect is cocaine. There’s also a pistol on the table. One guy we recognize as being a resident of 123 Main Street. The other guy we know is not a resident; however, we recognize him from our previous investigations as a suspected drug dealer. What can we do with these guys?

Miller: At a minimum we can detain them. Now a resident or occupant is someone substantially connected to the residence and since we’re searching for contraband, we should be able to detain him through the search based upon the Summers doctrine.

Solari: Good.

Miller: And the other guy is not a resident; however, since he’s a suspected drug dealer at a place were we have probable cause to believe that there are narcotics, I think we have at least reasonable suspicion to believe that this guy is up to no good, or that criminal activity is a foot.

Solari: Alright and that this guy’s involved. What can we do for our protection?

Miller: We should be able to frisk these guys for weapons. We’ve got a reasonable belief that these guys are involved in trafficking narcotics. We know from our training and experience that drug dealers are often carrying weapons. More over, there’s a pistol to confirm our suspicions sitting there on the coffee table.

Solari: Good. So let’s assume we detain these two guys, we conduct a Terry Frisk for weapons. What’s another tool we have to make sure the search of this place is conducted in a safe and orderly manner?

Miller: We just talked about it - a protective sweep. I can frisk the house for people who might interfere with the search; and since I have a search warrant for the house, this should be a very broad sweep. I may sweep the entire area I intend to search because the warrant already gives me permission to be there. Of course, we’d need to be more careful if we were executing an arrest warrant. Right?

Solari: Absolutely. Good. So now let’s assume we’ve gone ahead and done that protective sweep. We haven’t found any people, in people-size places, who are going to interfere with our conducting the search warrant; now how are we going to actually go about conducting that search at 123 Main Street?

Miller: In a word, reasonably. The search warrant should particularly describe the place to be searched. We’re going to confine our search to that place. A search warrant for a residence; however, may include all other buildings and other objects within the curtilage of that residence even if not specifically mentioned.

Solari: Well can we always search those out buildings?

Miller: Ah, no. If there’s probable cause to believe the evidence described in the search warrant is located in those out buildings then “yea” and since we’re looking for narcotics, the out buildings are a likely hiding place. I think we can go inside the out buildings.

Solari: I agree with you there. Well suppose we find a grand total of about 1 kilo of cocaine. We found it on the coffee table, stashed inside the toilet tank, some was in the attic, and some was outside in a shed. What are we going to do with the occupant and that suspected drug dealer we found standing around the coffee table?

Miller: We’re going to arrest them. We’re going to take them into custody to answer for a charge of illegal possession of a controlled substance. There is probable cause to believe that they’re in possession of controlled substances.

Solari: Are we going to do anything else with these guys?

Miller: Well we’re going to search them incident to arrest. We’re going to search them not only for weapons and means of escape but also evidence.

Solari: Excellent. And finally what are we going to do when we leave 123 Main Street?

Miller: We’ve got to board up the doors that we might have forced open and give the occupant an inventory of the stuff we seized.

Solari: Alright, I’m with you on all of it. I think that’s great.

Miller: Well, now I’ve got a question for you. Let’s assume that the resident of 123 Main Street owns a car, but the car is not listed in the warrant as a place to be searched and the car is not on the curtilage of the home. Of course if the car is on the curtilage of 123 Main Street it would fall within the scope of the search warrant and we could search it, right?

Solari: Right.

Miller: Alright. Let’s assume that 123 Main Street is an apartment and the occupant’s car is parked in the parking lot outside. Do you know of a way we could search that car without going to get a warrant?

Solari: Well as you pointed out, it’s not on the curtilage, since we don’t really have curtilage in an apartment complex. So, we’ve got a couple of options. One is consent.

Miller: Why is consent a reasonable exception to the probable cause to the warrant requirement? Why don’t we still have to go get a warrant?

Solari: Think about it. If the owner of the car lawfully consents to its search then he can’t reasonably expect any privacy in that car. And if the owner has no REP in the place to be searched then, the 4th Amendment isn’t triggered. Remember there are two triggers for a 4th Amendment search, a government intrusion into a place where somebody has REP.

Miller: Now you said lawfully consents.

Solari: Right. Lawful consent has to meet three requirements. First, it has to be voluntarily - a product of free will. Second, the consent has to be given by someone with either actual or apparent authority over that place to be searched. Third the officers must confine their search to the place authorized.

Miller: How do courts determine whether consents is voluntary?

Solari: By the totality of the circumstances. The courts appear to find consent voluntary so long as it’s not the product of expressed or implied coercion. For instance, the courts consider the suspect’s age, intelligence, the number of officers who are present, the tone of voice they used, whether the suspect was in custody and given Miranda rights, and the suspect’s experience in the criminal justice system. No single one of those factors is determinative. The courts are going to consider all of them. Officers don’t have to tell people that they have the right to refuse a search, but of course if they do, that’s going to weigh heavily in favor of finding that the consent is voluntarily.

Miller: Well let’s get back to our resident at 123 Main Street. Let’s assume these facts. We’ve identified the occupant as the owner of the car in the parking lot. I ask the occupant, “Can we search your car?” I explain, “You have a right to refuse; however, if you don’t let us search the car, I’m going to apply for a warrant.” He then said “okay.” I spoke in a conversation tone of voice; however, this guy is in handcuffs at the time I’m having this conversation with him. Do you think that would be a voluntary consent?

Solari: I think it would be. What would weigh against a determination that the consent is voluntary is the fact that you’ve taken him into custody, he’s under arrest, and in handcuffs at the time you’re having that conversation; but; that doesn’t necessarily mean you can’t obtain a voluntary consent to search the car.

The things that definitely weigh in favor of it being voluntary – first, you told him where you wanted to search. You actually told him, even though you didn’t have to, that he had a right to refuse to give you consent to search. You also told him that if you don’t let us search the car, “I’m going to apply for a warrant.” Now that verbiage is pretty important. You simply told him the facts - you’re going to go apply for a warrant if he failed to consent. Importantly, what you can’t do is to tell him that if you don’t consent, I’m going to get a warrant or somehow pretend that you have a warrant that you don’t already have. But all you told him was that you were going to go ask for one. So I think that would be voluntary consent.

Miller: Okay, the second requirement you mentioned is that the consent be given by someone with either actual or apparent authority over the place to be searched. Correct?

Solari: That’s correct; and, of course the occupant of 123 Main Street owns that car. Then he can consent to a search of the car since he has actual authority over that vehicle.

Miller: Can we ever get consent to search from somebody else?

Solari: Third parties with joint authority over the place to be searched can also give you consent. For instance, married couples typically have joint control over the marital property so you can reasonable get consent from either one of those people. People living together as husband and wife typically have joint authority over their home and the property on it like vehicles, things like that. So if the occupant of 123 Main Street is married or maybe shares the car with a live in girlfriend then she can also consent to that search.

Miller: How about roommates?

Solari: Roommates have joint authority over the common areas of the home that they share. Before getting a roommates consent to search an occupant’s car, we’d have to ask that roommate some questions in order to determine whether he has authority over that car. It’s not reasonable to assume that someone has authority over a car just because he’s the owner’s roommate, but maybe the roommate and the occupant share the car. Perhaps the occupant and his roommate share the care and they take turns putting gas in it. In that case it would appear that the roommate has authority over that car and could give you consent.

Miller: Can we ever get consent to search a home from a child?

Solari: It depends on whether that child has authority over that place to be searched. A very young child wouldn’t appear to have actual authority over the home that he or she lives in, especially not to the extent that they’d be allowed to let strangers inside. It also wouldn’t appear that a child under 16 would have authority over a car because presumably they aren’t driving it or using it; however, my opinion would probably be different if the occupant of 123 Main Street has a 17 or 18 year old child that drives and has been seen using that car.

Miller: The evidence that is found based on third party consent can be used against the defendant. Correct?

Solari: Yes.

Miller: I bet that raises a lot of problems in court. For example, what happens in court when the defendant says that the third party did not have authority over the place to be searched, or better yet, suppose the third party says she lied to the police and really had no authority over the place at all?

Solari: Well that happens and the court in those cases will decide whether the consenter, that third party, had apparent authority over the place based on what facts were known to the officers on the scene. Police are not mind readers. They don’t know everything, so the court will take a look at what they knew and if they could reasonably concluded that that the person had apparent authority over the places to be searched.

There have been cases where disgruntled spouses have told police that they share a place like a house with their husband or wife and went ahead and authorized the police to search it. At trial the judge finds out that the consenter actually didn’t have authority. Let’s say it’s a wife who moved out, and has been gone for three or four months ago. The search would still be valid though if the consent was given by a person who the police reasonably, although mistakenly, believed had authority to consent to the search of that premises.

Miller: Here’s a question for you. What happens if the occupant refuses to give me consent to search, but his wife shows up sometime later, and she consents. “Go for it” she says.

Solari: Well the Supreme Court recently answered that question in a case called Georgia v. Randolph. Previously, if we had people with joint control over private areas and just one of them said “yes” – consented to a search, then the answer was that we could go ahead and search. In Georgia v. Randolph the court turned that on its head and said that now. In Georgia v. Randolph a husband and wife had joint authority over a house. The wife told the police that there was evidence of her husband’s drug use inside and invited them to come on in and search. The husband was physically present, saw what was about to happen and said “no, absolutely not you can’t come in and search.” The court held that when you have people with joint control over a private area and they’re physically present and even one person says “no,” then the answer is “no,” there’s no valid consent to search even if five other people say “yes”. If one says “no,” and he has joint control over that area to be searched then the answer is no.

Miller: Does that mean that the law enforcement officers have to determine and locate everyone who might have an interest in the property before they will get consent?

Solari: No. One of the really important factors in Georgia v. Randolph is that the husband who objected to the search was physically present so the court actually pointed out we don’t have to hunt down everyone with authority over this area. We don’t have to wake up sleeping people, or anything like that. It’s just that if somebody is physically present and voices an objection to the search then there’s no valid consent.

Miller: Now assuming that the officer gets voluntary consent to search from someone with actual or apparent authority over the place, where can the officer search?

Solari: The officer has to confine his search to the place that consenter authorized and can’t really go any further than that. Hopefully the officers will specify exactly where they want to search and then get the consenters permission to look there. In any event the officers really shouldn’t go beyond the scope of what’s been authorized. So for example if the consenter authorized a search of his home for narcotics, then the officers shouldn’t be reading his personal papers.

Miller: At court I bet the defendants often contend that if consent was given the officer exceeded the scope. In other words, they argue the cops went too far. How does a judge settled that dispute?

Solari: Well the judge will look at all of the facts and circumstances and determine whether it was reasonable for the officer to search the place based on the exchange, whatever was said between the officer and the consenter. For instance, suppose the officer asked the occupant at 123 Main Street, hey can I search your car out in the parking lot and the occupant said I got nothing to hide. Based on that exchange it’s probably reasonable to assume that the occupant consented to a search of the car. More over, it’s probably reasonable to then search the trunk, the glove box, under the seat and even the occupant’s briefcase or other containers inside the car. Of course if the consenter objects at some point, then the officer would not be able to continue to keep going into those locations.

Miller: After the consenter authorizes the search, can he withdraw?

Solari: Absolutely. You bet. However, the courts generally require that withdraw of consent be unequivocal. By that, I mean, the consenter has to then make it perfectly clear to the officer that he no longer consents to the search and wants the officer to stop.

Miller: Okay, let’s take a break. When we come back we’re going to talk about the mobile conveyance exception to the warrant requirement.

Solari: Okay.