Consent

A police officer ordinarily cannot search a private location without a warrant. However, one of the many exceptions to this rule is when the party with the property interest in the location consents to the search. A cop is not prohibited from asking anyone whether they will agree to have their home, car, clothes, or even bodily fluids (such as blood, urine, or saliva) searched without a warrant. If the person consents to the search, the evidence seized is admissible in court regardless of whether the police ever had probable cause to believe the search would result in the discovery of contraband or other evidence.

Consent might be the most dangerous exception to the warrant requirement because police officers regularly lie that the suspect permitted the search that led to the seizure of evidence against him. In order for a consent search to be lawful, the Commonwealth bears the burden of proving: (1) the police obtained permission to search prior to the beginning of the search; and (2) the consent to search was “unequivocal and specific.” Although consent is required to be unequivocal, it need not be verbal. For example, a person who tells the police “I’m clean, search me” has consented to the search, as has the person who answers a police officer’s knock at his apartment door and steps to the side to allow the officer to enter.

The Commonwealth also must prove the defendant (or third party) was not coerced into consenting to the search. If the defendant did not voluntarily consent to the search, any items that were subsequently seized will not be admissible at trial. In determining whether an individual voluntarily consented to a search, a judge will consider the tone of the police officer’s request, the individual’s age and intelligence, whether the individual had prior interactions with the police, and whether the individual was under the influence of drugs or alcohol. The police are not required to tell people who are consenting to searches that they are allowed to refuse to consent. It is also permissible for the police to tell individuals they will apply for a search warrant if consent is not given.

Consent by Third Parties

What happens if a third party consents to a search of the defendant’s property? The search is constitutional if the third party has either actual authority or apparent authority to consent to the search.

  • Actual authority exists when the person giving consent to the search has a property interest in the area to be searched. Therefore, someone who lives with the defendant can consent to a search of their shared home. However, actual authority to search the defendant’s home does not extend to authority to search closed containers inside the apartment that belong to the defendant. A landlord may also have actual authority to allow a cop to search his tenants’ apartment (but only if there is a written lease that allows the landlord to enter the apartment himself and search for contraband).
  • Apparent authority exists when a third party represents his authority to consent to a search of the defendant’s property and a police officer reasonably relies on the third party’s representation (even when it turns out to be untrue). The officer must conduct a diligent inquiry of the third party before searching to attempt to confirm that the third party is authorized to consent to a search.

People being investigated by the police often believe they will be rewarded by cooperating. This is almost always untrue. If the police are asking for your consent to search your property, you should politely tell them to leave you alone and you should then call a criminal defense attorney.

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