Consent searches
Encyclopedia
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.
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.”
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.”
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.”
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.”
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
law enforcement personnel based on the consent of the individual whose person or property is being searched.
Overview
In the U.S., the simplest and most common type of warrantless searches are searches based upon consent. No warrantWarrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
or probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
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
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
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
Schneckloth v. Bustamonte
Schneckloth v. Bustamonte, , was a U.S. Supreme Court case in which the high court ruled that in a case involving a consent search, while knowledge of a right to refuse consent is a factor to be taken into account, the state doesn not need to prove that the one who is giving permission to search...
. 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.”
Other parties
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
Undercover
Being undercover is disguising one's own identity or using an assumed identity for the purposes of gaining the trust of an individual or organization to learn secret information or to gain the trust of targeted individuals in order to gain information or evidence...
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.Revoking consent
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 CircuitUnited States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
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
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
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-rayX-ray
X-radiation is a form of electromagnetic radiation. X-rays have a wavelength in the range of 0.01 to 10 nanometers, corresponding to frequencies in the range 30 petahertz to 30 exahertz and energies in the range 120 eV to 120 keV. They are shorter in wavelength than UV rays and longer than gamma...
screening. In United States v. Herzbrun, the U.S. Court of Appeals for the Eleventh Circuit
United States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
found Herzbrun “had no constitutional right
Constitutional right
An inalienable right is a freedom granted by a Nature or the Creator's endowment by birth , and may not be legally denied by that government.-United States:...
to revoke his consent to a search of his bag once it entered the X-ray machine
X-ray machine
An X-ray generator is a device used to generate X-rays. These devices are commonly used by radiographers to acquire an x-ray image of the inside of an object but they are also used in sterilization or fluorescence....
and he walked through the magnetometer
Magnetometer
A magnetometer is a measuring instrument used to measure the strength or direction of a magnetic field either produced in the laboratory or existing in nature...
.” 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
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
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
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
or probable cause; once this has been developed the individual loses the right to revoke consent. However, in United States v. Fuentes
United States v. Fuentes
United States v. Fuentes was a 1997 case in which the U.S. Court of Appeals for the Ninth Circuit ruled that "Mere refusal to consent to a stop or search does not give rise to reasonable suspicion or probable cause." The case involved a Terry stop at an airport of a suspected drug smuggler, and his...
, the court found the “[m]ere refusal to consent to a stop or search does not give rise to reasonable suspicion or probable cause.”