CONSENT: HOW MANY AMERICANS UNKNOWINGLY GIVE UP THEIR CIVIL RIGHTS

The government generally needs a search warrant to search and seize items in an area where you have a “reasonable expectation of privacy” unless an exception to the search warrant requirement applies. One of the major exceptions to the search warrant requirement is consent. The following is a hypothetical. This common exchange between a police officer and a person (“Oblivious Oscar”) illustrates how easy it is to waive the warrant requirement:

Oblivious Oscar: “What did I do wrong officer?”

Officer:  “You were going 15 M.P.H. over the posted speed limit.”

Oblivious Oscar: “I’m sorry officer. I didn’t realize. It won’t happen again.”

Officer: “Okay, but I’d like to search your car. Do you mind?”

Oblivious Oscar: “Um, okay.”

Oscar could have refused to consent to that search, but instead, just gave Officer free reign to search his car. Thus, anything illegal that Officer finds in Oscar’s car can be used as evidence against Oscar. But what if Oscar did not know he could have refused? What if Oscar was scared of being arrested if he refused? The test to determine whether consent is valid seems like a simple one: Was consent given voluntarily?[1] However, voluntariness of consent depends on the totality of the circumstances surrounding the particular situation.[2]

In the above example, Oscar’s consent would very likely be deemed valid. However, if Officer pointed a gun at Oscar when he asked whether Oscar minds if he searched the car, Oscar’s consent would likely be deemed involuntary and thus invalid. Accordingly, the U.S. Supreme Court has held that the person giving consent does not need to know that he/she has a right to refuse to consent to a search for consent to be valid, but that should still be considered as a factor in the totality of circumstances analysis.[3] As an additional note, there are no requirements or prerequisites for a police officer to ask a person for consent to search; any officer can approach any person at any time and ask for consent to search.

If you or someone you know consented to a search that resulted in the seizure of incriminating evidence, call a civil rights attorney immediately to determine whether that consent was valid. If the consent for the search was found to be invalid, all evidence seized as a result of the search would likely be excluded and thus cannot be used by the government during prosecution.

— By Ara M. Baghdassarian, Esq., Barnes Law

Ara M. Baghdassarian is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Bumper v. North Carolina, 391 U.S. 543, 548 (1968)

[2] Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)

[3] Schneckloth, 412 U.S. at 249