SEARCHING A VEHICLE consider in making this determination WITHOUT A WARRANT include, but are not limited to, the age, Consent Searches education, and intelligence of the individual;5 the individual’s knowledge of 6 Bryan R. Lemons his or her right to refuse to give consent; Senior Instructor whether the individual cooperated in the search;7 whether the suspect was in 8 BACKGROUND custody at the time the consent was given; the suspect’s belief that no incriminating 9 “It is well-settled that one of the evidence will be found; the presence of coercive police procedures, such as specifically established exceptions to the 10 requirements of both a warrant and displaying weapons or using force; and the suspect’s experience in dealing with probable cause is a search that is 11 conducted pursuant to consent.”1 When a law enforcement officers. Additionally, law enforcement officer obtains valid a law enforcement officer who has consent to search a vehicle, neither lawfully detained a suspect during a reasonable suspicion, nor probable cause, vehicle stop is not required to inform the is required. Thus, “in situations where the suspect that he or she is free to leave before obtaining a valid consent to police have some evidence of illicit 12 activity, but lack probable cause to arrest search. If a suspect is under arrest, there or search, a search authorized by valid is no requirement that law enforcement officers notify the individual of his or her consent may be the only means of 13 obtaining important and reliable Miranda rights prior to requesting evidence.”2 consent, even if the individual has previously invoked his right to silence or REQUIREMENTS right to counsel. “A consent to search is not the type of incriminating statement There are two requirements for a toward which the Fifth Amendment is directed. It is not in itself ‘evidence of a consent search to be valid. First, the 14 consent must be voluntarily given. Both testimonial or communicative nature.’” “the Fourth and Fourteenth Amendments 5 Id. at 226 require that a consent not be coerced, by 6 Id. at 227 explicit or implicit means, by implied 7 th 3 United States v. Carrate, 122 F.3d 666, 670 (8 threat or covert force.” In making this Cir. 1997)(Suspect “idly stood by while the determination, courts will look at the troopers searched his car, never indicating that he “totality of the circumstances” objected to the search”) 8 surrounding the giving of the consent, Id. 9 United States v. Asibor, 109 F.3d 1023, 1038 n.14 because “it is only by analyzing all the (5th Cir.), cert. denied, 522 U.S. 902 circumstances of an individual consent (1997)(Explaining six factors analyzed to that it can be ascertained whether in fact it determine voluntariness of consent) was voluntary or coerced.”4 Factors to 10 Id. See also Orhorhaghe v. Immigration and Naturalization Service, 38 F.3d 488, 500 (9th Cir. 1994) 1 Schneckloth v. Bustamonte, 412 U.S. 218, 219 11 United States v. Barnett, 989 F.2d 546, 556 (1st (1973)(citation omitted) Cir. 1993) 2 Id. at 227 12 Ohio v. Robinette, 519 U.S. 33, 40 (1996) 3 Id. at 228 13 Miranda v. Arizona, 384 U.S. 436 (1966) 4 Id. at 223 14 United States v. Lemon, 550 F.2d 467, 472 (9th Further, “there can be no effective given by an individual with either actual or consent to a search or seizure if that apparent authority over the place to be consent follows a law enforcement searched. “Actual” authority may be officer’s assertion of an independent right obtained “from the individual whose to engage in such conduct.”15 For property is searched.”20 Additionally, example, if an individual gives consent consent to search may be given by a third- only after a law enforcement officer party “who possesses common authority asserts that he or she has a warrant, the over or other sufficient relationship to the consent is not truly being given … effects sought to be inspected.”21 As voluntarily, because the officer is noted by the Supreme Court in United “announcing in effect that the [individual] States v. Matlock:22 has no right to resist the search.”16 In Orhorhaghe v. Immigration and Common authority is, of Naturalization Service,17 the court found course, not to be implied that the suspect’s consent had not been from the mere property voluntarily given because, among other interest a third-party has in things, a law enforcement officer had the property. The authority informed him “he (the officer) didn’t need which justifies the third- a warrant.” This statement on the part of party consent does not rest the law enforcement officer “constituted upon the law of property, … an implied claim of a right to conduct with its attendant historical the search.”18 The burden of proving that and legal refinements …, the consent was voluntarily given rests but rests rather on mutual with the prosecutor, and “cannot be use of the property by discharged by showing no more than persons generally having acquiescence to a claim of lawful joint access or control for authority.”19 most purposes, so that it is reasonable to recognize that The second requirement for a any of the co-inhabitants consent search is that the consent must be has the right to permit the inspection in his own right and that the others have Cir. 1977). See also Cody v. Solem, 755 F.2d assumed the risk that one of th 1323, 1330 (8 Cir.), cert. denied, 474 U.S. 833 their number might permit (1985)(“Simply put, a consent to search is not an the common area to be incriminating statement”); Smith v. Wainwright, 23 581 F.2d 1149, 1152 (5th Cir. 1978)(“A consent to searched. search is not a self-incriminating statement”); United States v. Faruolo, 506 F.2d 490, 495 (2nd Within the context of vehicle Cir. 1974)(“There is no possible violation of Fifth searches, third-party consent most Amendment rights since consent to search is not ‘evidence of a testimonial or communicative commonly arises in two distinct situations. nature.’”); and United States v. Glenna, 878 F.2d 967, 971 (7th Cir. 1989). 15 Orhorhaghe, supra at note 15. See also Bumper 20 Illinois v. Rodriguez, 497 U.S. 177, 181 v. North Carolina, 391 U.S. 543, 550 (1968) (1990)(citation omitted) 16 Bumper, 391 U.S. at 550 21 United States v. Matlock, 415 U.S. 164, 171 17 Supra, at note 15 (1974) 18 Id. at 501 22 Id. 19 Bumper, 391 U.S. at 550 23 Id. at 171 n.7 In the first, a third-party has sole example, in United States v. Fuget,28 the possession and control of the vehicle of court noted that: another. In that case, the third-party has the authority to consent to a search of the The driver of a car has the vehicle24 and any evidence discovered authority to consent to a during the consensual search may be used search of that vehicle. As against the actual owner of the vehicle.25 the driver, he is the person having immediate By relinquishing possession possession of and control to another, the owner or over the vehicle. The lessee of the vehicle ‘driver may consent to a evidences an abandonment full search of the vehicle, of his or her privacy including its trunk, glove interest in the vehicle; thus, box and other components.’ it is reasonable to conclude This is true even when that the third party to whom some other person who also possession was surrendered has control over the car is was also given authority to present, if the other person consent to a search of all remains silent when the areas of the vehicle.26 driver consents and does not object to the search.29 In a second, but distinct, third- party consent scenario, the third-party Finally, a law enforcement officer driver of the vehicle consents to a search may obtain consent from an individual while the owner is present as a passenger. who has “apparent” authority over the In such a case, “it is clear … that even if place or item to be searched. This the owner/lessee is present as a passenger, typically occurs when a law enforcement the driver of a vehicle has some amount of officer conducts a warrantless search of a joint access to the vehicle, and, in fact, the vehicle based upon the consent of a third- driver has immediate control over the party whom the officer, at the time of the vehicle.”27 Nonetheless, a critical factor search, reasonably, but erroneously, considered by the courts in these scenarios believed possessed common authority over is whether the owner/passenger objected to the vehicle.30 If the officer’s belief that the the search. If so, the driver’s consent is third-party had authority to consent is most likely inadequate. However, where “reasonable,” considering all of the facts the owner/passenger remained silent available at the time the search is during the search, courts are inclined to conducted, the search will still be valid. find the driver’s consent valid. For 28 984 F.2d 943, 948 (8th Cir. 1993) 24 United States v. Morales, 861 F.2d 396, 399 n.8 29 Id. (citations omitted). See also Dunkley, supra (3rd Cir. 1988); United States v. Diaz-Albertina, at 526 (Driver’s consent valid where passenger 772 F.2d 654, 658-659 (10th Cir. 1985), cert. with superior possessory interest failed to object, denied, 484 U.S.