Consent Searches Flashcards
Consent Searches:
What are the three main Questions to ask when doing a consent search problem?
Consent Search: Ask…
- Was the consent voluntary?
- What is the scope of the consent?
- If no consent given, may a 3rd party give consent instead.
- Was the Consent Voluntary?
General Rule for Warrantless Searches when there is consent?
General Rule for Consent Searches: When consent is given under the totality of the circumstances, a warrantless search may be conducted.
-Prosecutor bears the burden of demonstrating by a preponderance of the evidence that consent was freely given.
- Was the Consent Voluntary?
Voluntariness is a question of fact–what’s the test?
Schneekloth v. Bustamonte
- Was the Consent Voluntary?
Test: Whether the will of the D was overborne under the particular circumstances
-knowledge of right to refuse a factor, but not determinative
Rule: Validly obtained consent justifies an officer in conducting a warrantless search or seizure, with or without any suspicion, including PC RS
- Was the Consent Voluntary?
Consent is valid if it is:
- GV
- NW
- What it doesn’t require…
- Was the Consent Voluntary?
Consent is valid if it is:
- Given voluntarily under the totality of the circumstances
- Given without police asserting authority to search based on a warrant, whether it is valid or not.
- Voluntary consent does not require knowledge of the right to refuse.
- Was the Consent Voluntary?
People v. Gonzalez: name some factors to determine if consent was voluntary:
(Facts: apartment swarmed, spouses separated, struggle ensued, consent obtained 1.5 hours after entry).
- Was the Consent Voluntary?
Factors to determine consent:
- custody status
- length of detention
- use of physical/psychological punishment
- number of officers
- handcuffs
- D’s youth/experiences/intellect
- D’s level of cooperation
- Physical separation from others
- Repeated/prolonged nature of Qs
- Aware or advised of right to refuse/other constitutional rights
- implicit threats to cooperate
- whether consent followed a cool down period**
Bumper v. North Carolina: if police assert lawful authority (and it isn’t true or it is true) is consent valid?
- Was the Consent Voluntary?
Rule: Where coercion is used to overbear will of the D, consent is not valid
Note: court focused on officer said they could search anyway.
- Was the Consent Voluntary?
Statements about Warrants–when are they too coercive:
- Not too Coercive
- too coercive
- Was the Consent Voluntary?
Statements about warrants:
- Not too Coercive: “I will have to go seek a warrant.”
- Too Coercive: saying “we’ll just go get a warrant” with some impliedness of it being automatic
- What is the scope of the consent?
Is consent to search revocable?
- What is the scope of the consent?
Rule: Consent of search is revocable at any time unless the police have already developed probable cause or exigent circumstances.
- What is the scope of the consent?
What determines scope of consent generally?
- What is the scope of the consent?
Gen Rule: scope of consent is generally determined by the expressed object of the search
- What is the scope of the consent?
Florida v. Jimeno
(Facts: PO stop D, suspected of having drugs, consents to search, finds container, opens, it has drugs
- What is the scope of the consent?
Held: Objectively reasonable to believe scope of search included opening containers
Rule: A warrantless consent search is invalid if the officer exceeds the scope of the consent granted.
NOTE: BOP of Gov’t to prove voluntariness of consent
NOTE: BOP on D to prove scope of the consent
- If No Consent from D, can a 3rd Party Consent?
What type of third party may consent?
- If No Consent from D, can a 3rd Party Consent?
Third Parties Who Can Consent:
1. Actual Authority: If they have actual authority over the place to be searched
- Apparent Authority: so long as reasonable for the officer to believe 3rd party had authority to consent
Note: when one person consents but the other does not, and they both share third party authority, then NO CONSENT VALID.
- If No Consent from D, can a 3rd Party Consent?
Stoner v. California (Hotel Clerk walks police into room while D not present).
- If No Consent from D, can a 3rd Party Consent?
Hold: Hotel guest entitled to cont protection against unreasonable searches and seizures
No Apparent Authority: not objectively reasonable under the circumstances to conclude the hotel clerk had the authority to consent to the search.
- If No Consent from D, can a 3rd Party Consent?
Frazier v. Cupp: co users of bag, one gives consent, although not his-valid?
Illinois v. Rodriguez: GF who had already moved stuff out lets police in to sleeping BF’s apartment to arrest him for domestic violence. What’s the test?
- If No Consent from D, can a 3rd Party Consent?
Holding: it Reasonably appeared to officer that friend could consent-valid.
Test: Do the facts available to the officer warrant a man of reasonable caution to believe that the consenting party had authority to consent.
Rule: A warrantless search of residence is const when it is based on the consent of a person whom the police, at the time of entry, reasonably believe has common aCTUAL authority over the premises, whether or not the authority is valid.
- If No Consent from D, can a 3rd Party Consent?
Objecting Co Tenant Rules:
- Who wins?
- Presence?
- If No Consent from D, can a 3rd Party Consent?
Objecting Co-Tenant Rules:
- Rule: objecting physically present co tenant refusal to consent is dispositive
- Objecting tenant must be physically present.
