SEARCHES BASED ON CONSENT
Basis for Granting Consent
Where law enforcement officials receive valid consent, a search of the property or premises requires neither a warrant nor probable cause. The individual who offers consent to a search generally must be a person who possesses sole or shared dominion and control over the property and who voluntarily agrees to give consent for the search to law enforcement officials. Generally, the police must not have affirmatively engaged in deceptive conduct or have openly lied to the individual from whom they were seeking consent. See Bumper v. North Carolina, 391 U.S. 543 (1968), in this lesson. Where improper deception has occurred, the purported consent will frequently be deemed invalid by reviewing courts. According to Bumper, where the government seeks to uphold a search based on a defendant's consent, the burden of proving that the consent was offered freely and voluntarily rests with the prosecution.
In determining whether the consent granted was given freely and voluntarily, courts use a "totality of the circumstances test." See Schenckloth v. Bustamonte, 412 U.S. 218 (1973), in this lesson. The factors to be considered include the level of education and general intelligence of the consenting party, the coerciveness of the circumstances, whether the individual was under arrest, whether the person knew about the right to refuse to grant consent, whether the police indicated a search would be conducted anyway, and whether police falsely stated that they possessed a warrant. While these factors are not exclusive, they demonstrate the usual considerations which courts use in determining whether consent was voluntarily given.
As a general rule, the consent must have been given by the party having dominion and control over the property. See Coolidge v. New Hampshire, 403 U.S. 443 (1971), This Chapter. If the individual lived in the home, had control of the automobile, or shared usage of luggage, that person generally has sufficient connection to the property to grant a valid consent to search. However, in Stoner v. California, 376 U.S. 483 (1964), the Court held that a manager of a motel did not have sufficient dominion and control over a guest's rented room to consent to a police search of the premises. Under the situation, only the guest could grant consent.
Consent has been upheld even where the person offering consent had no actual shared dominion and control over the property, but police were ignorant of her lack of authority. In Illinois v. Rodriguez, 497 U.S. 177 (1990), in this lesson, police made a warrantless entry into the apartment of Rodriguez based on the purported consent given by a female acquaintance of Rodriguez. Police had no reason to disbelieve the informant who indicated she had sufficient connection with the apartment to consent to a search. Since police acted reasonably and in good faith, the search was upheld as meeting the reasonableness standard of the Fourth Amendment.
Assuming the proper party voluntarily and freely grants consent, the person may offer a limited right to search in respect to the length of the search or its scope. Once given, consent may be withdrawn at any time. If police exceed the scope of the consent, evidence seized in violation of the limitations may
be excluded from use as evidence. The scope of consent given by a motorist to search his motor vehicle for drugs permits officers to open and look into containers which could reasonably conceal drugs. Florida v. Jimeno, 497 U.S. (1991).
Where the consenting party gave a free and voluntary consent to search property under that party's control and where police do not exceed the bounds of the consent given, any evidence seized may be used in court unless excluded for evidentiary reasons unrelated to the Fourth Amendment.
Voluntary Consent under the "Totality of the Circumstances" Test
SCHNECKLOTH v. BUSTAMONTE, Supreme Court of the United States (1973), 412 U.S. 218, 93 S.Ct. 2041
FACTS:
In the middle of the night, Officer James Rand stopped an automobile being operated with fewer than the required number of lights. Inside he found Joe Gonzales, Joe Alcala, and Robert Bustamonte and three other men. When the driver, Gonzales, could not produce any identification, Officer Rand requested identification from any of the others. Only Alcala produced a driver's license and volunteered the fact that the auto belonged to his brother.
Officer Rand requested permission to search the vehicle, a favor which Alcala quickly granted. He even opened the trunk in a quite cooperative gesture. Inside the passenger compartment, the searching officers uncovered three stolen checks which were linked to defendant Robert Bustamonte. Prior to the discovery of the checks, no person was under arrest and no one was threatened with arrest.
Bustamonte filed a motion to suppress the checks from trial alleging that a valid consent to search the vehicle had not been given since Alcala did not know that he had the right to refuse consent. The trial court denied the motion to suppress and Bustamonte was convicted of unlawfully possessing a check.
The California Court of Appeal affirmed the conviction on the ground that the state had met its burden of proving that valid consent was given by Alcala. The Court characterized the consent as having been given freely "without coercion or submission to authority."
Collateral relief in the United States District Court proved ineffective, but the Court of Appeals for the Ninth Circuit reversed the District Court's denial of habeas corpus. It held that Alcala must have known that his consent could have been withheld. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where the right to search depends on a consent theory, is knowledge of the right to refuse only one factor under the "totality of the circumstances" test?
HELD: Yes.
RATIONALE:
Mr. Justice STEWART delivered the opinion of the Court.
* * *
The precise question in this case, then, is what must the state prove to demonstrate that a consent was "voluntarily" given. Both state and federal courts have reviewed the search involved in the case before us. The Court of Appeals for the Ninth Circuit concluded that it is an essential part of the State's initial burden to prove that a person knows he has a right to refuse consent. The California courts have followed the rule that voluntariness is a question of fact to be determined from the totality of all the circumstances, and that the state of a defendant's knowledge is only one factor to be taken into account in assessing the voluntariness of a consent.
A
The most extensive judicial exposition of the meaning of "voluntariness" has been developed in those cases in which the Court has had to determine the "voluntariness" of a defendant's confession for purposes of the Fourteenth Amendment. Almost 40 years ago, in Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, the Court held that a criminal conviction based upon a confession obtained by brutality and violence was constitutionally invalid under the Due Process Clause of the Fourteenth Amendment. In some 30 different cases decided during the era that intervened between Brown and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the Court was faced with the necessity of determining whether in fact the confession in issue has been "voluntarily" given. It is to that body of case law to which we turn for initial guidance on the meaning of "voluntariness" in the present context.
Those cases yield no talismanic definition of "voluntariness," mechanically applicable to the host of situations where the question has arisen. "The notion of `voluntariness,'" Mr. Justice Frankfurter once wrote, "is itself an amphibian." (Citation omitted.)
Rather, "voluntariness" has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum, is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws. Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. (Citation omitted.) At the other end of the spectrum, is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics possess a real and serious threat to civilized notions of justice.
* * *
In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances - both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep. [Citations omitted.] In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted.
The significant fact about all of these decisions is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances. In none of them did the Court rule that the Due Process Clause required the prosecution to prove as part of its initial burden that the defendant knew he had a right to refuse to answer the questions that were put. While the state of the accused's mind, and the failure of the police to advise the accused of his rights, were certainly factors to be evaluated in assessing the "voluntariness" of an accused's responses, they were not in and of themselves determinative.
* * *B
Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express, or implied, is a question of fact to be determined from the totality of all the circumstances. 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 qua non of an effective consent.
* * *
Consequently, we cannot accept the position of the Court of Appeals in this case that proof of knowledge of the right to refuse consent is a necessary prerequisite to demonstrating a "voluntary" consent. Rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.
* * *
In short, neither this Court's prior cases, nor the traditional definition of "voluntariness" requires proof of knowledge of a right to refuse as the sine qua non or an effective consent to a search.
* * *
In this case there is no evidence of any inherently coercive tactics - either from the nature of the police questioning or the environment in which it took place. Indeed, since consent searches will normally occur on a person's own familiar territory, the specter of incommunicado police interrogation in some remote station house is simply inapposite. There is no reason to believe, under circumstances such as are present here, that the response to a policeman's question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person's response.
* * *E
Our decision today is a narrow one. We hold only that 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 Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.
[Judgment reversed.]
Notes
1. The Court decided Schneckloth in 1973 without giving extensive discussion over who or which person was the individual who had an expectation of privacy within the automobile. Later, in Rakas v. Illinois, 439 U.S. 128 (1978), the Court held that social guests as passengers in an automobile had no expectation of privacy within the car because neither passenger had any ownership or possessory interest in the automobile. If a person has no expectation of privacy, there is no Fourth Amendment issue to litigate during a motion to suppress hearing because the person has no legal standing to argue the issue.
2. In addition to the consent being voluntary in nature, the consent must come from the proper person, generally the one who has control over the property. Hotel owners and managers may not consent to search the rooms of guests on the theory that they do not possess shared dominion and control over the premises rented by the guest. Stoner v. California, 376 U.S. 483 (1964). Once the guest has vacated the premises, the dominion and control reverts to the manager who is then a proper person to grant voluntary consent.
3. In Coolidge v. New Hampshire, 403 U.S. 443 (1971), the spouse of the murder suspect successfully offered her consent for a police search of portions of the marital home. The trial court permitted the introduction into evidence of the alleged murder weapon found pursuant to the consent search of his wife. In this case, the spouse was a proper party to offer consent since she resided in the marital home and possessed shared dominion and control over the premises.
The Use of Fraud or Trickery to Gain Consent
BUMPER v. NORTH CAROLINA, Supreme Court of the United States (1968), 391 U.S. 543, 88 S.Ct. 1788
FACTS:
A North Carolina county sheriff, two deputies, and a state investigator were engaged in the investigation of a rape. As they approached the home which petitioner shared with his grandmother, the woman met the officers at the front door. One of the law enforcement officers falsely stated, "I have a warrant to search your house." To this, she replied, "Go ahead," as she opened the door. As she later stated, ". . . He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I took him at his word."
The subsequent search disclosed a .22 caliber rifle allegedly carried by the attacker during the rape. Defendant filed a motion to suppress the rifle alleging a violation of the Fourth Amendment due to the absence of a valid search warrant. The court upheld the search based on the consent given by petitioner's grandmother.
When the motion to suppress the rifle failed, the prosecutor introduced the gun into evidence against Bumper at his rape trial. This evidence along with other evidence produced petitioner Bumper's conviction for rape.
Bumper unsuccessfully prosecuted an appeal in the state court system of North Carolina. Among other issues, he contended that the search of his home was invalidly conducted since no warrant existed and that, under the circumstances, his grandmother's consent was invalid. The Supreme Court of North Carolina affirmed. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
May a search of a home be justified under the Fourth Amendment as applied to the states when "consent" has been granted only after a law enforcement official falsely announced that he possessed a search warrant for the premises?
HELD: No.
RATIONALE:
Mr. Justice STEWART delivered the opinion of the Court.
* * *
The issue thus presented is whether a search can be justified as lawful on the basis of consent when that "consent" has been given only after the official conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances.
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.
When a law enforcement officer claims 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.
We hold that Mrs. Leath did not consent to the search, and that it was constitutional error to admit the rifle in evidence against the petitioner. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Because the rifle was plainly damaging evidence against the petitioner with respect to all three of the charges against him, its admission at the trial was not harmless error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
The judgment of the Supreme Court of North Carolina is, accordingly, reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Notes
1. Generally, trickery utilized for the purposes of gaining entry, where the search must be anchored on the consent theory, will destroy the validity of the consent. However, trickery or fraud designed to facilitate entry where a warrant or exception to a warrant exists does not affect the legality of the entry. Since the warrant carries the authority to make a reasonable entry, deception which merely assists in preparing a peaceful intrusion works no Fourth Amendment wrong.
2. Where the issue of voluntariness of consent arises, the burden of proving consent rests with the prosecution. The government must prove by a preponderance that the consent was freely and voluntarily granted. However, some jurisdictions seem to require the higher standard known as "clear and convincing" evidence.
3. In Florida v. Royer, 460 U.S. 491 (1983), the state alleged that a person in government custody had given a legally cognizable consent to search luggage which had been removed from the custody of an airline. The Court held that defendant Royer had not given free and voluntary consent since he was being illegally held pursuant to an illegal stop and frisk. Royer, who matched a "drug courier profile" developed by the government, had been seized in an airport concourse and removed to an interrogation room. After the enforcement officials had physical possession of Royer's luggage, ticket and driver's license, an officer requested permission to search the luggage for drugs. When Royer unlocked the suitcase without giving oral consent or opening it, an officer lifted the lid, disclosing illegal drugs.
The Court held the consent invalid since it had been granted during an illegal detention [too lengthy]. The consent theory failed because the defendant's consent was coerced and therefore tainted as the fruit of an illegal arrest.
4. As a general rule, consent to search the interior of a car for the presence of drugs given by the driver of the automobile includes the permission to search paper bags and other containers within the vehicle which could theoretically hold drugs or drug paraphernalia. The Court held that a police officer might reasonably conclude that a reasonable person would know that drugs are often carried in containers and the usual interpretation of the scope of consent would logically include the search of containers. Florida v. Jimeno, 497 U.S. (1991).
Apparent Authority to Grant Consent
ILLINOIS v. RODRIGUEZ, Supreme Court of the United States (1990), 497 U.S. 177, 110 S.Ct. 2793
FACTS:
Police arrested Edward Rodriguez in his apartment and charged him with possession of a controlled substance with intent to distribute. Rodriguez's former house mate, Gail Fischer, gave consent for police to enter the apartment and assisted police by allowing them to use her key to the premises. Fischer appeared to police to be a person who possessed the right to consent to entry of the apartment.
Rodriguez filed a motion to suppress the controlled substances on the ground that Gail Fischer had no dominion and control over the apartment since she did not live there; her name was not on the lease; she did not assist in the payment of the rent; she was not empowered to invite others to the apartment; and she had moved most of her possessions from the premises. The Cook County Circuit Court granted motion to suppress on the ground that Gail Fischer possessed no common authority or dominion and control over the premises, even though the police had reason to believe that Fischer possessed proper authority.
The Appellate Court of Illinois affirmed the judgment of the Circuit Court. Following the refusal to hear the case by the Illinois Supreme Court, the Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where police officers have reason to believe that a person has proper authority to consent to a search of property, even where that individual does not actually possess such authority, may the police conduct a legal search consistent with the Fourth Amendment?
HELD: Yes.
Justice SCALIA delivered the opinion of the Court.
II
The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects. Payton v. New York, 445 U.S. 573 (1980); Johnson v. United States, 333 U.S. 10 (1948). The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, see Schneckloth v. Bustamonte, 412 U.S. 218 (1973), or from a third party who possesses common authority over the premises, see United States v. Matlock, supra, at 171. The State of Illinois contends that that exception applies in the present case.
IIIA
The State contends that, even if Fischer did not in fact have authority to give consent, it suffices to validate the entry that the law enforcement officers reasonably believed she did.
* * *B
On the merits of the issue, respondent asserts that permitting a reasonable belief of common authority to validate an entry would cause a defendant's Fourth Amendment rights to be "vicariously waived." Brief for Respondent 32. We disagree.
We have been unyielding in our insistence that a defendant's waiver of his trial rights cannot be given effect unless it is "knowing" and "intelligent." Colorado v. Spring, 479 U.S. 564, 574-575 (1987); Johnson v. Zerbst, 304 U.S. 458 (1938). We would assuredly not permit, therefore, evidence seized in violation of the Fourth Amendment to be introduced on the basis of a trial court's mere "reasonable belief" - derived from statements by unauthorized persons - that the defendant has waived his objection.
* * *
What Rodriguez is assured by the trial right of the exclusionary rule, where it applies, is that no evidence seized in violation of the Fourth Amendment will be introduced at his trial unless he consents. What he is assured by the Fourth Amendment itself, however, is not that no government search of his house will occur unless he consents; but that no such search will occur that is "unreasonable." U.S. Const., Amdt. 4. There are various elements, of course, that can make a search of a person's house "unreasonable" - one of which is the consent of the person of his cotenant. The essence of respondent's argument is that we should impose upon this element a requirement that we have not imposed upon other elements that regularly compel government officers to exercise judgment regarding the facts: namely, the requirement that their judgment be not only responsible but correct.
* * *
[I]n order to satisfy the "reasonableness" requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government - whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement - is not that they always be correct, but that they always be reasonable. As we put it in Brinegar v. United States, 338 U.S. 160, 176 (1949):
"Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability."
We see no reason to depart from this general rule with respect to facts bearing upon the authority to consent to a search. Whether the basis for such authority exists is the sort of recurring factual question to which law enforcement officials must be expected to apply their judgment; and all the Fourth Amendment requires is that they answer it reasonably.
* * *
[W]hat we hold today does not suggest that law enforcement officers may always accept a person's invitation to enter premises. Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry. As with other factual determinations bearing upon search and seizure, determination of consent to enter must "be judged against an objective standard: would the facts available to the officer at the moment. . . `warrant a man of reasonable caution in the belief'" that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22 (1968). If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.
* * *
In the present case, the Appellate Court found it unnecessary to determine whether the officers reasonably believed that Fischer had the authority to consent, because it ruled as a matter of law that a reasonable belief could not validate the entry. Since we find that ruling to be in error, we remand for consideration of that question. The judgment of the Illinois Appellate Court is reversed and remanded for further proceedings not inconsistent with this opinion.
So ordered.
Notes
1. Rodriguez permits the police to search premises where the purported consent offered comes from one who has apparent [although not actual] authority over the premises. The good faith belief by a police officer that a person has sufficient connection to the searched property will permit a consent search even where the person offering the consent has an insufficient relationship with the property. However, if the police have knowledge that makes good faith untenable, the consent offered will be an improper consent and will produce an illegal search and seizure.
2. In Matlock v. United States, 415 U.S. 164 (1974), mentioned in Rodriguez, the Court permitted one person who had authority over the premises to give valid consent to search the premises regardless of what an absent co-tennant might have said had the other been present. Generally, one of several co-tennants has valid authority and may give valid consent to search the areas which both, some, or all share dominion and control.