NCJ Number
48106
Journal
FBI Law Enforcement Bulletin Volume: 47 Issue: 3 Dated: (MARCH 1978) Pages: 27-31
Date Published
1978
Length
5 pages
Annotation
FOR CONSENT TO AN UNWARRANTED SEARCH TO BE VALID IT NOT ONLY MUST BE GRANTED BY A PARTY WITH AUTHORITY TO CONSENT, BUT ALSO MUST BE GIVEN VOLUNTARILY. JUDICIAL DECISIONS PERTAINING TO VOLUNTARINESS ARE REVIEWED.
Abstract
IN BUMPER V. NORTH CAROLINA (1968), THE SUPREME COURT HELD THAT A PROSECUTOR WHO SEEKS TO RELY UPON CONSENT TO JUSTIFY THE LEGALITY OF A SEARCH HAS THE BURDEN OF PROVING THAT THE CONSENT WAS GIVEN FREELY AND VOLUNTARILY. IN SCHNECKLOTH V. BUSTAMONTE, THE COURT ADVANCED A 'TOTALITY OF CIRCUMSTANCES' TEST TO DETERMINE THE VOLUNTARINESS OF CONSENT. THE ISSUE OF CONSENT GIVEN BY AN INDIVIDUAL WHILE IN POLICE CUSTODY WAS CONSIDERED IN U. S. V. WATSON (1976); THE COURT HELD THAT THE CIRCUMSTANCE OF CUSTODY IS NEVER ENOUGH IN ITSELF TO DETERMINE WHETHER THAT CONSENT IS VOLUNTARY. IN THIS AND ADDITIONAL CASES, CUSTODY STATUS IS CONSIDERED ONE FACTOR IN THE TOTALITY OF CIRCUMSTANCES. A NUMBER OF CASES HAVE BEEN CONCERNED WITH THE VOLUNTARINESS OF A CONSENT TO SEARCH OBTAINED BY LAW OFFICERS WHO WERE WIELDING WEAPONS AT THE TIME. AGAIN THE TOTALITY OF CIRCUMSTANCES MUST BE TAKEN INTO ACCOUNT; HOWEVER, OVERPOWERING ARMED POLICE PRESENCE HAS OFTEN BEEN JUDGED TO CONSTITUTE COERCION WHEN ADDITIONAL EVIDENCE THAT THE CONSENT WAS UNCOERCED IS LACKING. PROOF OF PHYSICAL FORCE IS NOT NECESSARY TO INDICATE POSSIBLE COERCION; THE PSYCHOLOGICAL ATMOSPHERE AND/OR USE OF THREATENED PENALTIES MAY INVALIDATE CONSENT. NUMEROUS CASES HAVE ADDRESSED THE ISSUE OF CONSENT GIVEN IN RESPONSE TO EXPRESSED OR IMPLIED POLICE AUTHORITY. THE COURTS HAVE HELD THAT CONSENT ELICITED BY A POLICE OFFICER WHO ERRONEOUSLY STATED OR IMPLIED THAT THERE WAS A WARRANT IS NOT VALID. A STATEMENT BY POLICE THAT A WARRANT CAN OR WILL BE ACQUIRED IS NOT IN ITSELF SUFFICIENT PROOF OF COERCION. HOWEVER, CONSENT GIVEN IN RESPONSE TO A POLICE STATEMENT THAT A WARRANT CAN OR WILL BE OBTAINED HAS BEEN DEEMED INVALID IF NO PROBABLE CAUSE FOR SEARCH EXISTED (HERRIOTT V. STATE OF ALABAMA, 1976). THE LANGUAGE USED BY POLICE IN ASKING FOR CONSENT CAN ALSO AFFECT THE COURT DECISION. FOR INSTANCE, IT WOULD BE REASONABLE TO EXPECT THE COURT TO DISALLOW A CONSENT GIVEN FOLLOWING A STATEMENT SUCH AS: 'IF YOU DO NOT CONSENT, I'LL BE BACK IN A COUPLE OF HOURS WITH A WARRANT AND HALF A DOZEN OFFICERS WHO WILL TAKE THIS PLACE APART.' FOR PARTS 1-3 AND 5-7, SEE NCJ 48103-48105 AND 48107-48109. (JAP)