Legal Updates

THE PROFESSIONAL LAW ENFORCEMENT OFFICER

Officers frequently ask for consent from suspects to do pat downs, searches and other actions. Because this is such a common occurrence it is important that officers know the law concerning this issue. Below is a summary of the law in this area.

When the prosecution seeks to justify a search based on consent, the officer is the one who usually has to provide the evidence of a valid consent. The officer must present evidence that clearly shows that the consent was voluntarily and knowingly given. As one court put it, “In determining whether or not there was consent, it is necessary that such a waiver or consent be proved by clear and positive evidence in unequivocal words or conduct expressing consent…” State v. Canez, 202 Ariz.133, 42 P.3d 564 (2002).

The easiest way to show the consent was voluntarily and knowing given is obtain consent by having the suspect sign a written consent form. Another sure way is to ask for consent and also tell the suspect he or she has the right to refuse the consent. However, it is not legally required for the officer to tell the suspect that they have the right to refuse consent. In all cases, the court will look at the totality of the circumstances to determine whether or not consent was voluntarily and knowingly given. Audio and video tape is a good way of showing the totality of the circumstances.

It is also not necessary to advise the suspect of the Miranda warnings before asking for consent, even if the suspect is in custody, because the consent to search is non-testimonial. However, a consent to search obtained after an illegal arrest will result in any evidence obtained being suppressed as fruit of the poisonous tree.

Officers can only obtain consent from a person who has apparent authority and control over the area or item. For instance an occupant of a residence can consent to the search of the common areas of the residence and that persons private areas. However, that person cannot consent to areas that are private to other occupants, unless the consenting person has access to the other occupants’ private areas.

A driver can consent to the search of the car, even if the owner is in the car. Passing the car keys to another person gives that person the apparent authority to consent to the search. However, if there are more than one person in the car, the officer must find out who owns each container in the car and obtain consent to search the container from that person.

A motel manager cannot consent to the search of a motel room if the room is rented and exclusively occupied by the renter. Once the rental period is terminated, the manager can consent to the search. The renters must have abandoned the room before the officers can search based on the manager’s consent. The manager’s consent cannot extend to the luggage of the renters.

The scope of the search is limited by the extent of the consent. If the consent is unqualified, then the officer may conduct a general search. The officer, however, must honor any narrowing or withdrawal of consent.

SOURCE: Chandler PD Legal Unit