NCJ Number
12115
Journal
FBI Law Enforcement Bulletin Volume: 42 Issue: 11 Dated: (NOVEMBER 1973) Pages: 23-27
Date Published
1973
Length
5 pages
Annotation
REVIEW OF CASES CONCERNING CAUTIONARY WARNINGS BY POLICE PRIOR TO A VALID CONSENT SEARCH.
Abstract
DESPITE A LOWER COURT DECISION REQUIRING POLICE TO WARN SUBJECTS OF CONSENT SEARCHES OF THEIR FOURTH AMENDMENT RIGHTS, MOST COURTS HAVE STOPPED SHORT OF ANNOUNCING AN EXPLICIT MIRANDA-TYPE GUIDELINE FOR POLICE IN THESE SITUATIONS. THIS ARTICLE DISTINGUISHES CUSTODIAL AND NON-CUSTODIAL CONSENT SEARCHES. THE SUPREME COURT HAS HELD THAT IN THE ABSENCE OF CUSTODY, A POLICE WARNING OF THE RIGHT TO REFUSE CONSENT IS NOT ESSENTIAL TO THE SEARCH'S VALIDITY. THE PROSECUTION IS REQUIRED, HOWEVER, TO PROVE THAT CONSENT IS VOLUNTARY, AND EVIDENCE THAT A WARNING HAS BEEN GIVEN STRONGLY SUPPORTS THIS CONCLUSION. A REQUIREMENT FOR WARNING OF RIGHTS BEFORE A SUSPECT WHO IS IN CUSTODY GIVES CONSENT IS STILL AN OPEN QUESTION.