Consensual vehicle searches are defined as searches conducted without reasonable suspicion, probable cause or a warrant. The determination as to whether or not consent was given is usually determined in Court during a suppression hearing. Usually it is after an officer alleges that you gave him consent to search your vehicle. So, what are the requirements for consent?
First requirement pursuant to the Fourth and Fourteenth Amendment is that consent must be voluntarily given without force or coercion. Free of coercion means without actual or implied threat of force. Courts look at the totality of circumstances when they make this determination. In analyzing the circumstances of the incident, Courts determine if the consent was given voluntarily or coerced. An initial inquiry could be to ask the officer if you are free to leave. If you are not free to leave or the officer tells you so, then you may be under arrest.
According to case law there are many things that make up the totality of circumstances like: your age, education level; your intelligence level; your knowledge of your right to refuse consent; whether or not you cooperated in the search; whether you were in custody when consent was given; your belief that no incriminating evidence will be discovered; whether police used force by displaying weapons or physical force; if the officer tells you he has a warrant before he ask for consent; or if the officer informs you that he is going to search anyway.
These so called totality of circumstances factors are important because the burden of proof as to whether or not consent was validly given rest with the prosecutor in Court. That’s correct, the opposition has to prove that the consent you allegedly gave the officer was not coerced.
Second requirement for consent is that only someone with either actual or apparent authority over the place to be searched may give consent. Authority is nothing more than having the power to control or make decisions in a situation or over certain property. If you are driving your own vehicle; have been given authority to drive someone else’s vehicle; or you have property in the subject vehicle; then you have the ability and are qualified to give valid consent. That doesn’t mean you are required to do so, you are just in the proper position to do so. If you are in the proper position to give valid consent, then you may also limit the scope of consent. For example you may give consent to search only the front seat, or the back seat area of the vehicle. If an officer goes beyond the scope of the consent given, the search is impermissible. It is important to note that whenever a person in actual or apparent authority gives consent to search the vehicle, it generally includes the entire vehicle, and its contents including unlocked containers like bags and luggage; unless it is limited in scope often by someone savvy. Searching locked bags, suitcases, or containers require express consent to search (reasonable expectation of privacy issues). However if an officer receives consent to search even locked bags, then the search will proceed; otherwise locked containers should only be opened by an officer with a warrant.
People may also revoke their consent, and if they do, the officer must terminate their search unless they have another exception to the warrant requirement of the 4th amendment, like probable cause. An example of how probable cause may be obtained follows. If the officer begins his search after receiving valid consent to search only the front seat of the vehicle; and during that search he discovers contraband on the seat; whether or not consent is withdrawn; the officer has just acquired probable cause by virtue of locating the contraband. Contraband is nothing more than any illegal substance or item in a person’s possession. The officer often announces his findings prior to proceeding with the search, but may conduct the probable cause search following its discovery. This is a general overview of consent searches and should hopefully help you in your determination to give consent.
You should always deny a consent search since there can be no positive consequences from allowing an officer to quell his curiosity regarding the contents of your vehicle. Giving officers consent to search is tantamount to allowing them to go on a fishing expedition while you hope he finds nothing, don’t do it. There is no rational reason for it. Additionally, do not feel that you are required to answer any question you are asked merely because an officer asks you. It is the officer’s burden to discover contraband or evidence of offenses, if they exist. Don’t ever feel as if you are required to assist with placing yourself in possible jeopardy. And for Heavens sake don’t tell the officer anything but the truth if you must speak. He can lie to you all day long but you will have adverse consequences from lying to him. Refrain from playing Russian roulette with your rights. Consider the fact that If an officer finds nothing you are free; but if there is contraband present you forgot, or someone else left in your vehicle; advancing to go and collecting $200.00 is no longer an option.
Be specific when you deny consent to prevent confusion or inadvertently waiving your rights. When you are asked for consent to search. Respond with, “Officer you do not have consent to search my vehicle without a warrant” or “Officer you are denied consent to search my vehicle.” If an officer ask, “May I search your vehicle?” Don’t simply say yes or I don’t care. If you simply answer NO to a consent to search request, in court you may find that the question according to the officer was, “You don’t mind if I search your vehicle do you?” Also, if you simply answer YES to a consent to search request, in court you may discover that the question according to the officer was, “Is it okay if I search your vehicle?” For these reasons it is imperative to be definitive when you deny consent. Don’t play around with your rights when it comes to dealing with police. Trust me when I say that they are not playing around with you. Bottom line, keep your vehicle clean; and when officers request consent to search, don’t take chances, go beyond just saying No.