Consent search

Different categories of Consent searches

Pedestrian encounters

Oftentimes an officer will have neither reasonable suspicion to stop an individual nor probable cause to arrest that person. A common tactic is to engage in conversation with the individual in an attempt to get them to incriminate themselves. This can, possibly, include a consent search.

Traffic stops

In Ohio v. Robinette (1996) the Supreme Court decided an officer does not need to inform the driver that the stop has ended. He can continue questioning and request a search of the vehicle. Since the encounter has now become a consensual encounter it is outside the protection of the Fourth Amendment. The Supreme Court assumed that a reasonable person would know the encounter was over and feel free to drive away.

Home search

Consent searches on people's homes have been given a higher level of scrutiny by the Supreme Court. This is because they happen in private without outside observers. The court is much more sensitive to the possibility of coercion and more guidelines have been put in place to protect against this.

Consent given by third 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 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 Supreme Court in United States v. Matlock (1974) held that co-occupant of a house had actual authority to consent to a search of the house. In Illinois v. Rodriguez (1990), 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 (2014) that the police may search with the consent of the co-occupant remaining on the premises.

Revoking consent and exceptions

Usually, 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 specific cases: airport passenger screening and prison visitation.

Withdrawing consent

Once consent to search is given, an individual may withdraw or restrict a search. Consent is considered withdrawn if an unequivocal statement is made either through statements, actions, or a combination of both.

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 (1984), 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 (9th Cir. 1986), 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 (1993). 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 (1997), the court found the "[m]ere refusal to consent to a stop or search does not give rise to reasonable suspicion or probable cause."

Cities and states requiring informed consent

Colorado

In May 2010, the state of Colorado enacted an informed consent law requiring police to inform drivers of their right to decline a consent search. The law was enacted in an effort to reduce racial profiling. It extends not only to drivers but also pedestrians. Because the law focused on Fourth Amendment protections, it was able to get bipartisan agreement and was signed by the governor, a former tough-on-crime District Attorney.

Fayetteville, North Carolina

Fayetteville, North Carolina, (population 209,889) came under criticism after a study showed between 2009 and 2010 black motorists were three times more likely than whites to be searched after a stop. The city manager was forced out and the police chief retired. A law was passed requiring police to get written consent before performing a search beginning March, 2012. A new police chief was given a mandate to rebuild community trust.

Durham, North Carolina

In October, 2014 Durham, North Carolina (pop. 267,743), in response to a collection of groups led by the Southern Coalition for Social Justice, adopted a written-consent policy for all searches. This was after the city was presented with clear documentation that black motorists were searched well above their share to the city's population. In implementing the policy, the city manager said it was in the interests of regaining the trust of the community.

New York City

The Right to Know Act was passed in 2017 by New York City's city council in response to the aggressive use of stop-and-frisk in New York City by the police department. The law consists of two parts. One is the "Consent to Search" law which requires an officer to inform someone they have the right to deny a search and to make sure that person understands that right. The other is the "NYPD ID" law, which requires the officer, in certain situations, to hand out business cards with their name, rank, badge number and command.

Notes

References

1. ''See, e.g.'', United States v. Matlock, [https://tile.loc.gov/storage-services/service/ll/usrep/usrep415/usrep415164/usrep415164.pdf 415 U.S. 164] (1974); Illinois v. Rodriguez, [https://tile.loc.gov/storage-services/service/ll/usrep/usrep497/usrep497177/usrep497177.pdf 497 U.S. 177] (1990).
2. Schneckloth v. Bustamonte, 412 U.S. 218, 248–249 (1973).
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11. ''[[Georgia v. Randolph]]'', 547 U.S. 103 (2006)
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13. Boven, Joseph. (May 4, 2010). "Colorado's new informed-consent bill celebrated as tool to fight racial profiling". The Colorado Independent.
14. Barksdale, Andrew. (October 16, 2013). "Fayetteville police making fewer traffic stops". The Fayetteville Observer.
15. (June 16, 2015). "Summary of Fayetteville Stops and Searches Before and After Written Consent Ruling Effective 2 March 2012". University of North Carolina at Chapel Hill.
16. Johnson III, Will D.. (2015). "Assessment Report on the Fayetteville Police Department". Homeland Security Digital Library.
17. Gronberg, Ray. (September 16, 2014). "Durham adopts written-consent policy for searches". Southern Coalition for Social Justice.
18. (20 November 2014). "Activists Wield Search Data to Challenge and Change Police Policy". New York Times.
19. Goodman, David J.. (2017-12-17). "City Council Passes Bills on Police Behavior Amid Outcry on Both Sides.". New York Times.
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