15. Consent

Question 1

Why are consent searches allowed?

Answer 1

Because citizens may voluntarily choose to give up their privacy.

Question 2

What are the 3 essential components to consent?

Answer 2

VAL

V-Voluntary and clear
A-Authority
L-Lawful presence and proper scope

Volunteer & clear: consent must be voluntary and clearly communicated

Lawful presence & proper scope: officers must be lawfully present. At the time they request consent, and the resulting entry and/or search must be performed reasonably.

Authority: The person who consents must control the property, injured and/or searched.

Question 3

To determine whether the defendant voluntarily consented, what do courts consider?

Answer 3

They consider the totality of the circumstances

Judges assess the words and actions of the police, as well as the characteristics and experiences of the suspect. In other words, they ask:

How did the police behave?
What were the characteristics of the defendant?

Question 4

Who has the burden of proving by a preponderance of the evidence that consent was voluntary?

Answer 4

The police and prosecutor have the burden proving by preponderance of the evidence that consent was voluntary. Preponderance is the same thing as probable cause (civil probable cause)

Question 5

Consent is not force!

Answer 5

Officers must not resort to intimidation.

Question 6

Do officers need to warn people they have the right to refuse?

Answer 6

They do not have to warn individuals of the right to refuse, however, advising a suspect that he may refuse, increases the likelihood that consent is voluntary.

Question 7

Can I promise not to charge a suspect in order to get consent to search?

Answer 7

Yes, but you must keep your promise.

Question 8

A suspect may explicitly or implicitly consent. His communication to the police must be what?

Answer 8

Clear and unambiguous

Explicit: I’m clean search me.
Implicit: officer: Can I look inside your trunk? Bad guy: OK.

Question 9

If you’re entry to a private building is improper, but you get consent once you get inside:

Answer 9

That consent will be considered invalid.

Question 10

A fraudulent claim of public safety in order to receive consent to enter is considered?

Answer 10

Coercive, it will invalidate consent.

Question 11

Consent to enter and consent to search our two separate issues.

Answer 11

Permission to enter a building or apartment, or other area by itself does not give the officer authority to search.

Specific consent to search must be a obtained separately.

Question 12

The search must happen when consent is given, otherwise:

Answer 12

If the search is delayed consent become stale.

Question 13

For a lawful motor vehicle stop, officers first must have a valid reason to stop the motorist.

Answer 13

Then…Officers must have a REASONABLE SUSPICION that evidence of a crime will be found inside the vehicle.

RS to stop the car then more RS to ask for consent that evidence of crime will be found!

Question 14

In Massachusetts, once an officer returns a motor’s paperwork. The stop is over.

Answer 14

You may not request consent at the end of a routine stop even if you tell the motors he’s free to leave.

Question 15

Officers, do not have to explain to the motorist

Answer 15

Why they are asking for consent, and what they will looking for. Ask for consent the same way each time. Only ask once and get it verbal instead in writing. Make sure you get a clear response. Silence is not a substitute for consent.

Question 16

Do I need permission to open a container that is locked?

Answer 16

During a consent search I need permission to open a locked container that is locked. It is unreasonable to break open a locked briefcase without additional permission from the suspect.

Question 17

You need separate permission to search beyond the passenger compartment, the glove box, and trunk.

Answer 17

This is the case of the officer who searched the engine compartment. The officer asked if there was anything dangerous in the vehicle and the bad guy quickly responded no you can check that was voluntary consent however, his search of the engine compartment went too far.

Question 18

Where two or more persons have equal rights to use the property:

Answer 18

Each person may consent to a search. This is joint access and control. Actual use is not required.

Question 19

If one party to the joint access and control rule, consents, and the other party does not consent what does this mean?

Answer 19

Police lack consent (absent exigent circumstances).

Question 20

A co-tenant must be this in order to object to a police search.

Answer 20

Only a co-tenant who is PRESENT and objects can prevent entry to search.

Question 21

Children who are routinely left alone may consent to a police entry and what else?

Answer 21

And a limited search. This issue has not been addressed by the appellate court. Best course of action is wait to the parents to return, and seek then consent from them, or secure the premise, and get a warrant.

Question 22

What is third-party consent? A.k.a. the Porter rule.

Answer 22

A third-party may legally consent to a police search, only if he:

Is a co-inhabitant with joint access and control (spouse, intimate, partner, family, member, roommate, or establish overnight guest)

Or

He has a signed contract, allowing him to permit a police search (landlords, property, managers, hot hotel/motel clerks)

Before police can enter, make sure you ask questions to determine whether the third-party is a true coinhabitant or only in possession of a contract authorizing him to permit a police search this will rarely be encountered.

Porter rule does not apply and exigent circumstances 

Question 23

Tenants and roommates may consent to a police search except in areas where the suspect maintains what?

Answer 23

Exclusive control.

This also applies to hosts. A host may consent to a police search of any jointly used property or area, but not where his guest maintains exclusive control over a room, suitcase, or dresser drawer, that the guest reasonably believes the host will not intrude upon.