There are only three ways to lawfully search a home: Consent, Exigency, or Warrant. This installment of Police Law in a Nutshell will briefly explain Consent, while future posts will cover Exigency and Warrant separately.
Home Searches 1 – Consent
Consent must be given voluntarily. There is no presumption that consent to a search was voluntary. The burden is on the State to prove by a preponderance of the evidence that the consent was knowingly, intelligently, and voluntarily given by someone authorized, or who reasonably appeared to be authorized, to do so.
Consent need not be in writing, but signed consent may help prove its voluntariness.
You are not obliged to disclose the right to refuse consent, but such a disclosure may help demonstrate the voluntariness of the consent.
The standard for determining who can legally grant consent is those with actual authority (often those with a reasonable expectation of privacy in and control over the premises). Officers should seek out individuals with actual authority over the premises when asking for consent. It’s only when it is later determined that someone did not have actual authority that courts look to “apparent authority” to determine if an officer’s actions were reasonable.
You cannot search if a co-occupant of equal authority is present and objects to the search, even if the other occupant has given consent.
The person who grants consent can limit the areas to be searched and may withdraw consent at any time, in which case you must stop the search. However, if probable cause for a search exists when consent is withdrawn, you may seize the premises while seeking a warrant.
Landlords cannot grant permission for a search of rented premises. Similarly, innkeepers cannot authorize a search of a rented room. Again, a person who does not have a reasonable expectation of privacy in the premises being searched is unlikely to have the authority to give permission.
More on Scope of Search. The standard for measuring the scope of a suspect’s consent is an objectively reasonable one—what a typical reasonable person would understand from the exchange between the officer and the suspect. What a suspect or an officer subjectively believes the scope of consent to be is irrelevant. Therefore, it is best to specify the intended nature of the search to some extent. For example, a motorist giving consent during a roadside vehicle safety check may reasonably believe that your request to search is for vehicle safety purposes or to address traffic violations, rather than an entire search for drugs or other contraband. Similarly, your request to search a computer on the pretense of checking for unauthorized router access does not permit a search to uncover child pornography.
More on the Voluntariness of Consent. Consent to a warrantless search must be voluntary to be valid. There are no strict or fixed rules for determining whether consent is voluntary. Whether consent is free and voluntary involves an examination of the “totality of circumstances” surrounding the interaction between law enforcement and the consenting individual. Courts must decide whether the consent was voluntary, intentional, and an informed waiver of a known right, or if it resulted from coercion, duress, or deception. Each case is evaluated based on its specific facts and context. Factors courts consider in assessing voluntariness include, but are not limited to, (1) whether the person granting consent was under arrest or otherwise restrained, (2) the age, education, experience, and intelligence of the consenting party, (3) awareness of the right to refuse consent, and (4) whether the consent was obtained through coercion or deception by law enforcement, such as threatening to come back with a search warrant (rather than simply stating an intention to apply for one), or threatening to report unfavorable living conditions to child protective services, or misrepresenting the purpose of the search or investigation.
If you have questions or situations you want to present to Brian MacMaster, email brian.macmaster@dirigosafety.com.