Warrantless Exception (also no PC): CONSENT

Question 1

Schneckloth v. Bustamonte, (1973)

Answer 1

Police made routine traffic stop, w/out probable cause, asked for permission to search car - brother of car’s owner gave consent. Officers discovered 3 stolen checks, linked to Bustamante, a passenger.

• When a prosecutor seeks to rely on CONSENT to justify the lawfulness of a search, he has the burden of proving that the consent was in fact, freely and voluntarily given - what must the prosecution prove to demonstrate that consent was “voluntarily” given?? → Consent must NOT be coerced, by either explicit or implicit means, or by implead threat or covert force
• To determine is CONSENT was free from coercion in any way - must examine ALL THE SURROUNDING CIRCUMSTANCES to determine if in fact the consent to search was coerced, we must examine the subtly coercive police questions as well as the possibly vulnerable subjective state of the person who consents
• RULE: when the subject of a search is NOT in custody and the State attempts to justify a search on the basis of his consent, the 4th and 14th amends require that the STATE demonstrate that the CONSENT was in fact VOLUNTARILY GIVEN - and not the result of duress, coercion, express or implied - totality of circumstances factual analysis

Question 2

Illinois v. Rodriguez

Answer 2

• ^Schneckloth suggests that individuals assume the risk that others could consent to search of a shared space, in Illinois v. Rodriguez, (1990) court extended this to situations where police could reasonably believe that 3rd party has common authority, even if no actual authority existed  “Factual correctness is NOT synonymous w/ reasonableness”

Question 3

Georgia v. Randolph

Answer 3

whether warrantless entry and search of a premises are valid when one occupant consents and the other, who is present, expressly refuses to consent. [both have control and access to home, and both are present]

if co-occupants are in conflict as to whether police may enter/search, then the refusing co-occupant prevails, and police do not have consent to enter/search. (no bearing on domestic violence calls; police already have the authority to enter a dwelling to protect someone from violence if they have good reason to believe such a threat exists)

BUT, in Fernandez v. California, 571 U.S. 292 (2014), the defendant’s objection to the search of his home did not negate the consent of his live-in girlfriend since, at the time of the search, Fernandez had been arrested and removed from the home.

Question 4

Consent Summarized

Answer 4

• Consent is voluntary if neither express nor implied duress or coercion exists; the state does not have to prove that the individual had knowledge of the right to refuse consent. Schneckloth (knowing and intelligent waiver doctrine reserved for rights relating to “fair trial”).
• The scope of a consent search is determined by whether a reasonable officer would understand the particular area to be searched to be included within the consent. Florida v. Jimeno (1991)
• Consent to search may be given by anyone w common authority over the area searched. Matlock.
  o This consent is valid if the police could reasonably believe that the individual had common authority, even if actual authority did not exist. Illinois v Rodriguez (1990).
• Whereas objection to a search by a present co-tenant prevents a search, the objection of a non-present co-tenant does not, unless the objecting individual is not present by virtue of police trying to avoid the objection. Randolph.
• Prior objections do not prevent a search if the non-present objector has been removed reasonably, such as via a lawful arrest. Fernandez; Matlock.