CP Ch. 15- Consent Flashcards
Consent entries and searches are allowed, because citizens may (blank) choose to give up their privacy.
Voluntarily.
The three essential components of a valid consent search are: (3)
- Voluntary & Clearly communicated
- Lawful presence & proper scope
- Authority
Note: The person who consents MUST control the property entered OR searched.
May consent be the result of expressed or implied law enforcement direction?
No.
Ex. Defendant stepped back and put his hands on his head in response to “FBI open the door!”. This was not consent to enter.
To determine whether the defendant voluntarily consented, courts examine the “totality of circumstances”. In other words, the judge will assess the following questions: (2)
How did the police behave?
What were the characteristics of the defendant?
Who has the burden of proving consent was voluntary? And what is the standard of proof?
- The police and the prosecutor have the burden
- Preponderance of the evidence (means the same as PC)
Consent may not follow (blank) or (blank).
Force or show of force.
*Officers must not resort to intimidation.
May a person give valid consent if, when doing so, he is afraid of another person such as an accomplice?
Yes. However, it would not be valid if the person consents out of fear of the police (ex. intimidation tactics).
Is written consent required to search.
NO. But it is persuasive.
*if officers do rely on written permission, it must be acquired BEFORE the search begins.
Failing to use a consent form, when an officer has one available, may indicate:
A lack of voluntariness.
When asking for consent to search or enter, must police also warn the individual of his right to refuse?
No.
“The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning…”
While not required, advising a suspect that he may refuse increases the likelihood that:
Consent is voluntary.
True or false:
Officers may suggest that a citizens failure to consent will result in adverse legal or family consequences.
FALSE. These types of threats force consent.
Valid or Invalid?
Officers told the defendant’s girlfriend that, if she did not consent to a search, they would have child services remove her sleeping 6 year old.
Invalid.
The threat to take her child forced the girlfriend’s consent.
Valid or Invalid?
While waiting for a consent form to arrive, an officer asked the defendant’s girlfriend about her 4 year old son and mentioned reporting to DCF.
Valid.
This was not coercive because the officer was a mandated reporter, and his request for information was legitimate and not overbearing under the circumstances.
Valid or Invalid?
Officer told the defendant that, if police searched pursuant to a warrant, they would damage the apartment. But, if the defendant consented to a search, they would “show a little courtesy”.
Invalid.
Appeals court strongly criticized this type of pressure.
Consent is voluntary even if it follows an officer’s announced intention to apply for a search warrant. This tactic is acceptable, ONLY if:
Police already have information that amounts to Probable Cause.
Consent is voluntary even if it follows an officer’s announced intention to apply for a search warrant. Officers must say they will (blank), and not imply that they have the power to issue one themselves.
SEEK a warrant.
Police may promise not to charge a suspect in order to get consent to search, as long as:
They keep their promise.
Are police authorized to promise a suspect that they will not charge them in order to get consent?
Yes. As long as they keep their promise.
Ex. police promised defendant they would not charge him with drug possession if he let them search his bedroom drawer. They did not charge him with drug poss, just with poss of ammo they found in the drawer. This was proper.
Are education, emotional makeup, and intoxication relevant factors when considering whether consent is valid?
Yes.
Ex. consent of drunk 17 year old will receive closer scrutiny than 40 year old sober physician. Given the disparity in age, education, and mental awareness, the physician is much less susceptible to police intimidation.
True or false:
Prior cooperation often indicates voluntary consent.
True.
Is consent voluntary when the suspect authorizes a search in order to prove his own innocence?
Yes.
Ex. Suspect motivated to clear his name of murder allegations authorized a search of his suitcase, but insisted officers agreed not to charge him if they found drugs in the suitcase.
A suspect’s assertive reaction to police helps show:
Voluntary consent.
Commenting on one’s own right to refuse a search indicates:
Voluntary consent.
Is it possible for police to obtain voluntary consent from a suspect who is already in police custody?
Yes. it is more difficult, but still possible.
Ex. Suspect voluntarily accompanied police to station for interview. He waived his Miranda rights. Following the interview, they asked if he would consent to a search of his apartment. He agreed, signed a consent form, and was arrested. Detectives, accompanied by the defendant, went to the department and seized additional evidence. The court was satisfied that the defendants consent was voluntary throughout the process.
Consent- Clear communication-
While the suspect may (blank) or (blank) consent, his communication to the police must be (blank) and (blank)
explicitly or implicitly;
clear and unambiguous.
May consent be nonverbal?
Yes.
Such as a nonverbal invitation in response to an investigative question. (retrieving bloody pants from a back bedroom when asked if she knew where suspects clothing was)
* However, officers may not take advantage of a suspects ambiguous comments or gestures.
Valid or invalid?
Officer called out to McGrath, who he knew from a previous arrest for drug possession. Mcgrath responded “I’m clean this time” and spread his hands out, while walking away. Officer stepped in and patted him down. He found a vial of amphetamines.
Invalid.
Mcgrath’s comment, while walking away, was not an invitation.
For a physical gesture to indicate consent, it must be in response to either: (2)
- An explicit request to enter. Ex. “Hi Rose, Springfield police, may we come in?” or;
- An explicit statement about the police purpose. Ex. “Rose, we need to speak with Danny about an incident tonight. where is he now?”
Her pointing to the kitchen, where Danny is seated, now becomes a clear invitation to enter.
Voluntary consent may come from a non- English speaker, provided the request and response were:
Properly translated.
Note: Be sure to document who helped translate.
Like plain view, consent is concerned with the suspect’s expectation of privacy. With plain view, the police have a valid reason to intrude on the suspect’s privacy when they see the evidence. With consent, it is the (blank) that puts Officers in a position to find evidence.
Suspect’s permission
Does an unlawful entry invalidate later consent?
Yes.
May police make fraudulent claims of public safety authority, as a ruse, to enter a home?
No. It is coercive, so it invalidates consent.
Ex. Police posed as gas company employees and falsely warned of a possible gas leak to get into apartment.
-Permitting the police to use this type of ruse jeopardizes public safety because it might prompt citizens to bar officials seeking to protect from a real emergency.
Fraudulent claims (FBI agents claiming Washington DC was receiving virus from defendants computer- in order to search for child porn, Officer’s claiming report of domestic disturbance in order to remove and photograph suspect in the hallway) of public safety authority is (blank), so it (blank)
Coercive, so it invalidates consent.
Consent to enter is NOT consent to search. Permission to enter building, apartment, or other area-by itself- does not give the officer authority to search. Specific (blank) must be obtain (blank)
Specific consent to search must be obtain separately.
May police enter a suspect’s home secretly? (Undercover officer enters through an unlocked back door to buy drugs from the defendant)
Yes. Because they are not taking advantage of their police authority. Officer entered just like defendant’s other customers.
