Agreeing to a Search

Law enforcement sometimes asks for permission to search. How do you respond? How can you challenge a supposed "consent search?"

How Police Get Permission to Search

If a defendant freely and voluntarily agrees to a search, the search is valid and whatever the officers find is admissible in evidence. No equivalent to Miranda warnings exists in the search and seizure area. Police officers do not have to warn people that they have a right to refuse consent to a search (U.S. v. Drayton, U.S. Sup. Ct. 2002; Ohio v. Robinette, U.S. Sup. Ct. 1996).

For example, assume that Officer Mayer knocks on the door of Sue’s house. Officer Mayer suspects that Sue is part of a group of suspects who are making pirated DVDs, but the officer lacks probable cause to search her house or arrest her. When Sue answers the door, the following conversation takes place:

Officer: Good afternoon. I’m Officer Mayer. Is your name Sue?

Sue: Yes, it is. What can I do for you, officer?

Officer: I’m investigating the production of pirated DVDs, and I’d like to talk to you.

Sue: Well, I’m not sure I can help you. I’m not under arrest or anything, am I?

Officer: No, but you may have information that can help the investigation. Do you mind if I come in and look around?

Sue: I’m in the middle of a couple of things. Could you come back later?

Officer: If that’s necessary. But it won’t take long.

Sue: We might as well get it over with if you can hurry. Look around all you want, there’s nothing here of interest to you.

Officer Mayer enters Sue’s house, and in a corner of her living room closet notices hundreds of blank DVDs. The officer arrests Sue for producing pirated DVDs and seizes the blank DVDs.

Under these circumstances, a judge would undoubtedly rule that the officer legally seized the blank DVDs. Though the officer had neither a warrant nor probable cause to search Sue’s house, Officer Mayer’s search was valid because Sue agreed to let the officer search her house. The fact that the officer was politely insistent on entering the house does not overcome the fact that Sue consented to the entry before it was made.

Getting Tricked Into Giving Consent

To constitute a valid consent to search, the consent must be given “freely and voluntarily.” If a police officer wrangles consent through trickery or coercion, the consent does not validate the search. Often, a defendant challenges a search on the grounds that consent was not voluntary, only to have a police officer testify to a conflicting version of events that establishes valid consent. In these conflict situations, judges tend to believe police officers unless defendants can support their claims through the testimony of other witnesses.

Example: In the example above, assume that before Sue consents to Officer Mayer’s entry into her home, Officer Mayer falsely told her, “It will do you no good to refuse me entry. I’ve got a warrant, so I’m prepared to come in whether or not you consent.” Sue replies, “If you’ve got a warrant, I might as well let you in. Look around all you want.” In these circumstances, because of the officer’s false claim of having a warrant, Sue's consent to the search wasn’t voluntary. However, it may be Sue’s word against the officer’s as to whether the officer tricked her into consenting.

Example: Undercover cop Jones, posing as an employee of the gas company, asks Casey to allow him into Casey’s home to check for an alleged gas leak. Casey agrees. Jones enters and sees drugs and drug paraphernalia in the kitchen. Jones’s entry into and search of Casey’s home is invalid. Consent that is obtained by fraud is not considered voluntary, and Jones’s story that he was a gas company employee is fraud.

Example: Same case, but this time Jones has been posing as a parent in Casey’s son’s school and has made friends with Casey independent of his undercover mission. Casey invites his “friend” Jones in to play cards. Once inside the home, undercover agent Jones unexpectedly sees illegal drugs. He seizes the drugs and arrests Casey. In this situation, Casey was not tricked or coerced in any way to let Jones in. He just didn’t know who his friend really was. The Constitution does not protect people from the consequences of having what courts call a “false friend.” Jones’s behavior was valid.