How Police Receive Consent to Search

Imagine that you were driving along the interstate. You see a police car with its lights turned on, so you pull over. The police officer asks the typical questions. After reviewing your information, the police officer asks you if there is anything illegal in the vehicle. After you deny there being any illegal items in our vehicle, the officer asks if he can search the car. At this point, you have not been placed under arrest. Should you allow them to search you or should you refuse to be searched? Do you know your rights when being asked to be searched by a police officer?

The first thing you should know is that you do not necessarily need to allow a police officer to search you or your property. Some times when you refuse to be searched by the police, you may appear to be hiding something. If you have nothing to hide, it is usually a good idea to allow the police officer to search you and your property. If you refuse to have your body and property searched, you may be detained for obstructing the law. If you feel you have been wrongfully searched, you can always file a complaint against the department, if the search did not show anything illegal in your possession. Just be prepared to fight an uphill battle, as there is usually some probable cause for being searched. The following paragraphs will discuss the various ways you, or another, may give consent to a search.

Frisking

A frisk is when an officer searches your body to ensure you do not have any illegal drugs or weapons on your body. A frisk usually consists of a general pat down of the suspect's body and will not escalate to a search, unless the police officer has probable cause to request a search. This is generally after a police officer feels an object in your pocket or elsewhere on your body. This is done to protect the police officer and yourself. Of course, the police officer needs to have probable cause prior to conducting a frisk. It is generally wise to allow a police officer to conduct a frisk.

Voluntary Consent

Typically, a police officer may not search a person without his or her consent. There is some stipulation as to what constitutes consent. First off, the consent must be voluntary. By voluntary, the consent must be free of coercion and force. If the police use coercion, in a manner which is threatening, any evidence collected during the search would be deemed as invalid, thus leading to charges being dropped in some cases. There is a test to determining whether or not the consent search was voluntary or not.

This test, known as the totality of circumstances test looks at the circumstances surrounding the consent search. The officer will have to prove at least the following: whether or not force was utilized in receiving consent; whether or not a person's age, mental capabilities, or intellect prevented thorough understanding of what he or she was being asked; and whether actual consent was granted. Even if there was no probable cause, a voluntary consent is always valid (Worrall, 2004).

Some people may not know they can refuse the search. Even if you do not know that you have the option to refuse a search, the consent is still valid. Since the totality of circumstances test looks at all variables surround the search, the search is legal. It is very rare that a voluntary consent to search would become invalid due to the lack of knowledge that one may be able to refuse consent to search. Most departments have to protect themselves, just as you need to protect yourself, and may have you fill out a "consent to search" form. This can help prevent any questions about your voluntariness to consent to a police search.

Limiting the Scope of a Search

If the police ask you if they can search you or your property, you can actually limit the search. The scope limitations of a consented search can actually allow you to voluntarily or involuntarily withdraw your consent. For example, prior to your arrest and detention, you gave the police permission to search your car or house and are released. Then the following day the police show up at your home to conduct a search, you have the right to deny them access, unless of course they have a warrant. As long as the police do not have a warrant to search you or your property, you may terminate the search at anytime (Worrall, 2004).

Third-Party Consent

Third-party consent is when another person gives permission to the police to search another individual's property. Most commonly, these cases involve landlords granting police access to search a tenant's apartment; and parents allowing police to search their children's room. There are three general rules for third-party consent to searches: (1) husbands and wives may grant consent to search for each other; (2) parents can consent to search their children's room; and (3) children are not allowed to consent to a search of their parents' property because they are underage (Worrall, 2004).

In addition to family members having third-party consenting privileges, there are two types of authority for third-party consent to searching one's personal property. The two types of authority are common authority and apparent authority. Common authority is when there is shared use of a property and only one of the parties is present. This is illustrated when a home is shared by two friends and one of the roommates is not present at the time of the search. This type of search is only allowed in the common areas of the property being searched. Apparent authority is when police enter property without a warrant by someone who does not own the property, but who the police believe has some form of authority over the property. This is best illustrated by a man who has a key to his ex-girlfriend's apartment, thus displaying apparent authority over the property and allowing the police to search the premises (Worrall, 2004).

"Knock and Talk" Consent Searches

The "knock and talk" consent searches are very popular tactic many law enforcement officers use, mainly because it is often difficult to obtain a warrant. What the officers will do is knock doors where they suspect drugs or other illegal activities are being carried out and ask to be allowed to search the home. These types of searches are seen as controversial because these searches are warrantless and probable cause may be nonexistent. These searches expose a loop hole in the Fourth Amendment right that protects us from illegal and warrantless searches (Worrall, 2004).

Knock and talk consent searches are seen as legal searches because consent has been given. Many people can refuse to let the officers into their home, thus making the police work harder to obtain a warrant. Of course, this type of search can be terminated and the scope of the search may be limited.

It is up to you to decide if you want to consent to a search of yourself or your property. Remember, no one may force you to allow the police to search you or your property. As long as you know your rights, you can use your own judgment as to whether or not allow police to search you or your property.

Source:
Worrall, J.L. (2004). Criminal procedure: from first contact to appeal. Upper Saddle River, NJ: Pearson Education Inc.