NCJ Number
80201
Date Published
Unknown
Length
0 pages
Annotation
In this series of lectures on the fourth amendment, Judge Charles Moylan discusses one of the exceptions to the search and seizure law -- consent -- and cites Supreme Court cases applicable to the subject of consent in such cases.
Abstract
He emphasizes that consent to searches and seizures must be based on whether the act (the search or seizure) was reasonable, whether the searcher was a representative of government or a private person, and whether the giver of consent had the power to give consent. Two key questions are involved in the issue of consent: (1) who has the authority to give valid consent? and (2) what is the quality of that consent? In case of joint ownership of the property searched, there is an assumption of risk in that joint owners have the authority to consent to a search. The case of Bustamonte v. Schneckloth, involved the consent by a custodian of a car to search the car, resulting in the discovery of evidence which led to the arrest of a passenger. The Court of Appeals for the 9th Circuit overturned the conviction of the passenger (Bustamonte) arguing that the custodian's consent was a waiver of Bustamonte's 4th and 14th amendment rights and that the State was under an obligation to demonstrate not only that the consent had been uncoerced but that it had been given with an understanding that it could be freely and effectively withheld. The Supreme Court stated that only when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent do the 4th and 14th amendments require that the State demonstrate that consent was voluntarily given and not the result of duress or coercion. The Court would judge such a consent case by the 'voluntariness standard' -- looking at the mood of the police, whether the confrontation with the citizen was threatening, the age of the subject, and other factors. Overall, the voluntariness standard is judged by the 'totality of the circumstances.' Moylan also points out the differences between confessions and consent situations in regard to the voluntariness standard.