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Criminal Procedure - Outline Part 12

By Collin B. Hardee

Download the PDF version of this outline

<< Part 11 | Part 13 >>


Consent Generally → even if none of the exceptions to the requirement of a search warrant are present, the police may nonetheless make a constitutional warrantless search if they receive the consent of the individual whose premises, effects, or person are to be searched.

  • Schneckloth v. Bustamonte (1973) → the consenter’s ignorance of his right to refuse consent was only one factor to be considered in ascertaining the validity of the consent. “While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine quo non of an effective consent.”
    • Totality of the Circumstances – Used a TOTC test to determine the consent’s validity looking at the voluntariness of the confession. Court stressed that the issue was whether the consent was “voluntary”; the Court felt that a consent is “voluntary” as long as it is not “the product of duress or coercion, express or implied.”
    • Warning of Rights – The police do not have to tell the consenter that he has a right to refuse
  • Ohio v. Robinette (1996) → A consent is still voluntary regardless if the police do not inform the consenter that he is free to go after returning his driver’s license upon being stopped for speeding. Although knowledge is a factor to be taken into account in voluntariness analysis, there is no categorical requirement that the police inform “detainees that they are free to go before a consent to search may be deemed voluntary.”
  • Bumper v. NC (1968) → False Claim of Present Authority – where an officer falsely asserts that he has a search warrant, and then procures “consent,” the consent is INVALID. “When a law enforcement officer claims that he has the authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion – albeit colorably lawful coercion. Where there is coercion there cannot be consent.”
    • Consent Induced by Reference to Invalid Warrant → Lo-Ji Sales v. NY – if the police state that they have a search warrant, and the warrant is in fact invalid (either b/c of insufficient definiteness, lack of probable cause, etc.), the consent of the person whose premises are to be searched is similarly invalid
  • Limiting Temporal/Scope of the Consent – Even if a person voluntarily consents to a search, he can set limits of a temporal nature (e.g., “you may search my house for 2 mins and no more”) or limit the scope of the search (e.g., “you may search my kitchen and living room, but not my bedroom”)
  • Withdrawing Consent – a person may withdraw consent after it is granted and the police must honor the citizen’s wishes, unless their pre-withdrawal search gives them independent grounds to proceed.
Consent by Third Persons
  • D is Present and Objecting When Third Party Consents – Georgia v. Randolph (2008) → When D is present when the third party consents to a search of the premises over which the two have joint authority, and D makes it clear that he, D, is NOT consenting, the third party’s consent will NOT be binding on D, at least where it appears to the police that the third person and D have equal claim to the premises.
    • Where two parties are not living within some “recognized hierarchy” (e.g., household with parent and child; military barracks), the co-tenant who wishes to open the door to a third person “has no recognized authority in law or social practice to prevail over a present and objecting co-tenant.”
    • The co-tenant’s “disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have been in the absence of any consent at all.”

Fernandez v. California (2014) → when one resident denies entry into a dwelling, but is arrested on independent grounds, then come back to the dwelling and get consent to search by another resident, “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search.”

  • Randolph is a “narrow exception” making clear that it was limited to situations in which the objecting occupant is present
Reasonable Mistake?

Illinois v. Rodriguez (1990) → the third-party consent will be binding on the absent defendant even if the police were mistaken about whether the consenter in fact had joint authority over the premises, as long as the mistake was a reasonable one.

  • E.g.) if the consenting third person falsely tells the police that she lives in the premises to be searched, and the police reasonably belive her, the lie will not invalidate the consent
  • Even if the consenter is an “infrequent visitor” rather than a “usual resident” with no true authority to allow the police to make a warrantless entry or search; so long as the police were reasonably mistaken in their believe that the consenter had authority to consent, this is the same as if she had actually had such authority.
    • B/c the 4th Amendment bans only “unreasonable” searches and seizures, and where the police make a factual determination about a search, their reasonable mistake on the issue of authority to consent transforms the search into a “reasonable” one
Scope of Consent
  • A consent search is invalid, even if the consent was voluntary, if the police exceed the scope of the consent granted
  • Florida v. Jimeno (1991) → it is reasonable for an officer to consider a suspect’s general consent to a search of his car to include consent to examine a paper bag lying on the floor of his car, i.e., suspect granted the officer permission to search his car, and did not place any explicit limitation on the scope of the search
    • It is objectively reasonable for the police to conclude that the general consent to search respondents’ car included consent to search containers within the car which might bear drugs
    • The 4th Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable
    • The standard for measuring the scope of a suspect’s consent under the 4th Amendment is that of “objective” reasonableness – what would the typical reasonable person have understood by the exchange between the officer and the suspect?
Reasonableness Clause: The Diminishing Roles of Warrants and Probable Cause The Terry Doctrine

Terry v. Ohio (1968) → a stop-and-frisk could be constitutionally permissible despite the lack of probable cause for either full arrest or full search, and despite the fact that a brief detainment not amounting to a full arrest was a “seizure” requiring some degree of 4th Amendment protection

  • “Seizure” → Court agreed that the detainment of the defendant on the street was a sufficient intrusion on his freedom that it was a “seizure” within the meaning of the 4th Amendment
  • “Search” → Court also agreed that the “pat-down” of the defendant was a “search” within the meaning of the 4th Amendment, even though it was not a full-scale body search
  • Not Unreasonable → Court rejected the argument that b/c a 4th Amendment seizure and search took place, “probable cause” was required, i.e., a stop-and-frisk does not require probable cause because the exigent circumstances (the need to act quickly) justified dispensing with the warrant requirement, allowed the Court to conclude that probable cause was not constitutionally required
    • Only Test → the only constitutional test is whether the stop and/or frisk was unreasonable
  • Rule → “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquires, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the 4th Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

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