Consent search

Consent searches (or consensual searches) are searches conducted by United States law enforcement after obtaining the voluntary consent of the person being investigated. In some cases, consent may also be obtained from certain third-parties.^[1] Searches that are the product of consent are one of several recognized exceptions to the warrant requirement of the Fourth Amendment to the United States Constitution. The prosecution bears the burden of proving that consent was freely and voluntarily given.^[2] Courts look to the totality of the circumstances to determine whether consent was freely and voluntarily given.^[3]

The three main categories of searches are a search of a house, automobile or pedestrian. In the case of an automobile, it is assumed the officer has already seized the car and the encounter is a Terry stop. When an officer returns a driver's identification, the encounter has been transformed into a consensual encounter. In the case of a pedestrian, a consensual encounter can lead to a Terry stop based on information gathered during conversation. Some states and cities pass laws that require officer to notify a right to refuse in one case, but not the others.

The person has the right to refuse to give consent, and except in limited cases may revoke consent at any point during the search. In addition, the prosecution in any trial using the search results as evidence is required to prove that the consent was voluntary and not a result of coercion.^[4]

In contrast to Miranda rights, officers conducting a consent search are not required to warn people of their right to withhold consent in order for consent to be valid, as determined by the U.S. Supreme Court in Schneckloth v. Bustamonte.^[5] Police are not required to conduct a search in a way that gives the individual an opportunity to revoke consent, as determined in United States v. Rich, where the U.S. Court of Appeals for the Fifth Circuit rejected the argument that "officials must conduct all searches in plain view of the suspect, and in a manner slowly enough that he may withdraw or delimit his consent at any time during the search."

A 2024 study found that consent searches are less likely than probable cause searches to result in discovery of contraband.^[6]

^ See, e.g., United States v. Matlock, 415 U.S. 164 (1974); Illinois v. Rodriguez, 497 U.S. 177 (1990).
^ Schneckloth v. Bustamonte, 412 U.S. 218, 248–249 (1973).
^ Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
^ Laser, Rachel Karen (1995). "Unreasonable Suspicion: Relying on Refusals to Support Terry Stops". The University of Chicago Law Review. 62 (3): 1161–1185. doi:10.2307/1600058. JSTOR 1600058.
^ Gallini, Brian (2012). "Schneckloth v. Bustamonte: History's Unspoken Fourth Amendment Anomaly" (PDF). Tennessee Law Review. 79.^{[dead link]}
^ Dias, Megan; Epp, Derek A.; Roman, Marcel; Walker, Hannah L. (2024). "Consent searches: Evaluating the usefulness of a common and highly discretionary police practice". Journal of Empirical Legal Studies. 21 (1): 35–91. doi:10.1111/jels.12377. ISSN 1740-1453.

[1] See, e.g., United States v. Matlock, 415 U.S. 164 (1974); Illinois v. Rodriguez, 497 U.S. 177 (1990).

[2] Schneckloth v. Bustamonte, 412 U.S. 218, 248–249 (1973).

[3] Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

[4] Laser, Rachel Karen (1995). "Unreasonable Suspicion: Relying on Refusals to Support Terry Stops". The University of Chicago Law Review. 62 (3): 1161–1185. doi:10.2307/1600058. JSTOR 1600058.

[5] Gallini, Brian (2012). "Schneckloth v. Bustamonte: History's Unspoken Fourth Amendment Anomaly" (PDF). Tennessee Law Review. 79.^{[dead link]}

[6] Dias, Megan; Epp, Derek A.; Roman, Marcel; Walker, Hannah L. (2024). "Consent searches: Evaluating the usefulness of a common and highly discretionary police practice". Journal of Empirical Legal Studies. 21 (1): 35–91. doi:10.1111/jels.12377. ISSN 1740-1453.

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