Consensual Search

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Does "Search" Mean in Criminal Law?

In criminal law, a search is an examination by law enforcement of a person’s property, personal belongings, body, or other areas that a person could reasonably expect to keep private. The Fourth Amendment of the U.S. Constitution is the immediate source of law enacted to safeguard individuals from unreasonable searches and seizures conducted by law enforcement. In general, the Fourth Amendment provides that a police officer must have probable cause to search or obtain a search warrant. However, there are some exceptions to this rule.

Consent searches are searches that law enforcement agents make founded on the person’s consent whose property they wish to search. Consent searches are the most typical form of warrantless searches. A search warrant or probable cause is not necessary if someone with proper authority gives consent.

To conduct a consent search, the person whose property is being searched must willingly waive their Fourth Amendment rights. In most circumstances, the person may decline to give consent; nevertheless, the law enforcement agent does not have to tell the individual that consent is voluntary.

The courts have determined that the individual who conducts a consent search does not have to identify themselves as a law enforcement agent. The person who gives consent does not have to be the individual who is charged with the crime. Courts have ruled that if an undercover officer discovers evidence based on a consent search, the evidence may be used in the criminal case.

Third parties may give consent in narrow circumstances. The person giving consent must have authority over the premises for the search to be valid. This generally applies to hotel management giving permission to perform a search. However, it does not apply to a landlord permitting to search a person’s apartment.

Once a consent search has begun, the individual whose property is being searched may withdraw their consent. Comments or actions may revoke consent.

It is essential to mention that pullback of consent must be undoubtedly expressed; communicating displeasure or impatience is not enough to withdraw consent.

What Are Some Examples of When the Police Need a Search Warrant?

Law enforcement needs a search warrant to legally search for evidence in locations or property wherein a person has a reasonable expectation of privacy.

Some of the areas that should be afforded a reasonable expectation of privacy according to case law include:

  • Homes (such as apartments, single-family houses, and in some instances, even motorhomes or houseboats);
  • Certain parts of a motor vehicle (e.g., areas that are locked) or closed containers in a car, but this will differ by the laws of each jurisdiction);
  • Hotel rooms or a place in which one is staying as an overnight visitor;
  • Specific public areas, such as a restroom stall.

What Is a Consensual Search?

A consensual search is when a person gives law enforcement authorization or consent to search an area where they have a reasonable expectation of privacy, such as their home or property.

In addition, a consensual search is one of the exceptions to the probable cause rule. The exception provides that if a person gives consent to the search, the police will not require a search warrant, even if the individual has a reasonable expectation of privacy in the location or object to be searched.

What Are the Requirements for a Valid Consensual Search?

For law enforcement to perform a proper consensual search, the individual whose belongings or body are searched must freely waive their Fourth Amendment rights.

According to this amendment, their waiver must be stated distinctly and unambiguously. Their consent must also be given willfully, not under duress or coercion. The police cannot declare a person will be arrested if they do not agree to the search without a warrant.

Nevertheless, it should be noted that the police do not need to notify a person that consent is voluntary. Therefore, it is essential to keep this point in mind. Many people might feel that they must allow the police to search, even if they don’t want to, under the impression that they can be arrested if they refuse.

For example, if a person is operating a car and the police pull them over to question if they can look inside the individual’s trunk, and then that individual responds “yes” and opens the trunk, then their actions will be deemed a valid consensual search. It does not matter whether the individual understood they had the freedom to refuse the search or not.

Can You Withdraw Your Consent to a Search?

A person is permitted to withdraw their consent to a search at any point after they have already consented. Like the form of consent, the revocation must also be done clearly and unambiguously. The revocation must be conveyed to the police officer searching.

Suppose a person’s trunk was searched, and the police officer is moving things around in the trunk of the individual’s automobile. They reply, “That is enough. I am withdrawing my consent and closing the trunk, so please quit searching.” They have adequately withdrawn their consent to the search.

Furthermore, the revocation must be stated as an explicit departure from their earlier consent statement, rather than a faint objection or a cynical comment concerning the search. There is a vast distinction between conveying, “I withdraw my consent” versus “I really would like it if you did not look in my trunk any longer.”

On the other hand, there are some cases where consent cannot be withdrawn once a person has given it. This applies in very narrow circumstances, such as when prisoners have agreed to a search of their jail cell.

Suppose law enforcement does not observe proper practices or conduct unreasonable searches without appropriate consent or a valid search warrant. In that case, any contraband found due to the search cannot be used as evidence to sustain a conviction at the defendant’s criminal trial.

What if I Believe Police Violated My Fourth Amendment Rights?

Suppose a person feels that their Fourth Amendment rights have been disregarded due to a search by law enforcement. In that case, they should pursue legal counsel.

For example, if a person did not agree to a search, but law enforcement searched their residence without consensual consent or a valid search warrant anyway, this situation may give rise to an illegal search.

Likewise, law enforcement searches or seizures that violate a person’s Fourth Amendment rights will be deemed unlawful, meaning that any evidence obtained will not be admissible in court or as evidence of their crimes.

Do I Need to Hire an Attorney for Help with Consensual Search Issues?

A criminal law issue, especially matters relating to the Fourth Amendment, can be difficult to manage without legal help. Suppose you believe that a police search has infringed your Fourth Amendment rights. In that case, you should contact a local criminal defense lawyer as soon as possible.

An experienced criminal defense lawyer will be able to ensure that your rights are sufficiently safeguarded and can give you the best chances for a successful outcome should your case go to trial. A lawyer can also help resolve the issue before it even reaches the point of going to court.

Save Time and Money - Speak With a Lawyer Right Away

  • Buy one 30-minute consultation call or subscribe for unlimited calls
  • Subscription includes access to unlimited consultation calls at a reduced price
  • Receive quick expert feedback or review your DIY legal documents
  • Have peace of mind without a long wait or industry standard retainer
  • Get the right guidance - Schedule a call with a lawyer today!

16 people have successfully posted their cases

Find a Lawyer