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Consent to Search- An Exception to the Warrant Requirement

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Consent to search is an exception to the warrant requirement, but it must be knowing, intelligent and voluntary to be valid

By Attorney Elisabeth K.H. Pasqualini, Constitutional Rights Lawyer, Harrisburg, PA

I have written several blog articles about police stops along roadways and the Constitutional requirements placed on police if they desire to search your car.  (See Blog link).  One of those exceptions to obtaining a warrant is the consent of the driver or some other person with a legitimate expectation of privacy in the place or thing to be searched.  This article explores in greater detail what is meant by 'consent.'

A person may refuse to consent and evidence of the refusal is not admissible

Neither the United States Constitution nor the Pennsylvania Constitution precludes a warrantless search of property when consent is given by a person possessing the authority to consent to the search.  Furthermore, the Pennsylvania Supreme Court has held that the greater privacy rights afforded by the Pennsylvania Constitution are sufficiently protected when the federal standard of voluntariness has been met.  A person may refuse to consent, and evidence of the refusal is not admissible. 

The police may not coerce you, consent must be knowingly, intelligently, and voluntarily given.

In Bumper v. North Carolina, the United States Supreme Court held that when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, the prosecutor has the burden of proving that the consent was, in fact, freely and voluntarily given.  Mere acquiescence to a claim of lawful authority is insufficient. The consent must be knowingly, intelligently, and voluntarily given. 

There is no obligation on police to advise you that you have a right NOT to consent, so don't be fooled into thinking you do.

A person need not be informed of the right to refuse consent to a warrantless search in order for the consent to be found voluntary, but such knowledge will be considered when assessing the totality of the circumstances surrounding the search. 

The courts look at the following factors to determine if you consent was voluntary and not coerced.

The following factors favor a finding that consent was voluntary:

  1. The defendant's background indicates his understanding of investigating procedures or his understanding of constitutional rights;
  2. The suspect has aided an investigation or search;
  3. The consenter believed the evidence to be so well concealed that it probably would not be found;
  4. The fact of some prior cooperation by the consenter which produced no incriminating evidence;
  5. The suspect felt that the best course of conduct was cooperation given that he was caught "red-handed";
  6. The presence of probable cause to arrest or search the suspect.

But, the following factors would work against a finding that the consent was voluntary; ie, NOT voluntary:

  1. The defendant was interrogated numerous times while in custody over a period of hours;
  2. The police used express or implied threats to obtain consent;
  3. The defendant acquiesced to an order, suggestion, or request of the police; and
  4. The police lacked probable cause to arrest or search the subject.

If you've been stopped or arrested by the police, be cooperative and courteous.  But, do not consent to a search of your car, home, containers, luggage or other items not on your person.  The police will try to get you to consent.  It's the easiest way for them to obtain evidence.  Do not make it easy on them.  Contact an experienced criminal law attorney.  You may contact Shaffer & Engle Law Offices, LLC toll free or email us today.

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