Consent to Search Case Law: An Overview for Criminal Defense Lawyers

Consent to search is a complex area of criminal procedure that all defense attorneys need to understand thoroughly. When police ask to search a home, car, bag, or person without a warrant, they are relying on the consent exception to the 4th Amendment’s warrant requirement. However, for consent to be valid, it must be given voluntarily. The courts use a “totality of circumstances” test to determine if consent was voluntary. Some key principles from consent to search case law that criminal defense lawyers should know include:

What Makes Consent Voluntary?

The government has the burden of proving consent was voluntary[1]. Consent is not voluntary if it is the result of duress or coercion, either direct or implied[2]. Important factors courts consider include:

• The age, intelligence, education of the consenter
• Whether the consenter was advised of his/her constitutional rights
• Length of detention or questioning prior to consent
• Repeated and prolonged nature of questioning
• Use of physical punishment (deprivation of food/sleep)

Police do not have to advise people of their right to refuse consent (no equivalent of Miranda warnings), but knowledge of the right to refuse is a factor[1]. Consent given while in custody is looked at more closely[2].

Third Party Consent

Consent can be given by a third party who has “common authority” over the premises, such as a spouse or roommate[3]. However, if a present co-occupant expressly objects, a warrantless search is unreasonable[3]. There are nuances around exactly when and how the objection must be made.

Police can also rely on third party consent if they reasonably believed the third party had authority, even if they were mistaken[3]. This depends on the facts apparent to police at the time.

Pretextual Traffic Stops

One common scenario is when consent is given after a pretextual traffic stop. The Supreme Court has held pretextual stops are permissible as long as police have probable cause of a traffic violation[4]. However, defense lawyers can still challenge whether consent was voluntary following the stop.

State v. Elders

A seminal consent to search case is the 1992 New Jersey Supreme Court case State v. Elders[1]. In Elders, police stopped the defendant’s car for speeding. An officer then asked to search the car, and Elders consented. Drugs were found and Elders sought to suppress the evidence.

The Court held consent must be both voluntary and “knowing” – i.e. given with an understanding that consent can be refused[1]. They ruled Elders’ consent was voluntary but not knowing. He was never told he could refuse consent. Other factors included that no Miranda warnings were given, he was not told he was free to leave, and there were multiple officers present[1].

Elders established strict standards for consent in New Jersey. However, most states only look at the totality of the circumstances, without requiring express knowledge of the ability to refuse consent[2]. Still, defense lawyers can cite Elders in arguing consent was not knowing and voluntary.

Implications for Defense Lawyers

• File a motion to suppress if there are questions about consent
• Look at the specific circumstances and factors courts weigh
• Educate the client on the right to refuse consent
• For traffic stops, determine if the stop was pretextual
• Cite State v. Elders and argue consent was not knowing
• Challenge third party consent if authority is questionable

Consent is a gray area of search and seizure law. Defense lawyers must scrutinize the facts carefully and raise solid arguments to exclude evidence where consent was invalid. Understanding consent case law, and cases like Elders, provide important tools for protecting a client’s constitutional rights.