An all too-often refrain from law enforcement when explaining why it was okay for them to have searched someone’s person, automobile, or even home is “he consented” or “she consented” or “they consented” or fill in the blank. Police officers love “consent.” After all, getting a warrant requires work on their part and scrutiny by a judge. It is so much easier for them to just ask “Mind if I take a look around?” and receive, in the vast majority of cases, the answer they want. A “no” answer to this simple question and that’s that. Or is it?

It is well established law that once a person consents to a search a warrant is no longer required. However, for consent to a search to be effective it must be freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968); Johnson v. State, 803 S.W.2d 272, 286 (Tex. Crim. App. 1990), cert. denied 501 U.S. 1259 (1991).

An interesting question to ponder is if an officer is asking permission to search does it mean that he or she actually needs it in order to do so? Sometimes they don’t and are just doing so as part of their regular procedure. Frequently I read police reports where officers ask for permission to search a car after smelling marijuana emanating from the vehicle when clearly consent is not required at this point – Texas courts have long held that the odor of marijuana emanating from an automobile after a traffic stop provides probable cause for a search of the vehicle. However, in many other circumstances, they are asking for permission for one reason only: because the Constitution requires a warrant for them to proceed with the search and the only way around that requirement is for them to receive consent from the person whose body, car, or home they wish to search. So the question of utmost importance for a defendant and defense counsel becomes:

When Is Consent Not Consent?

Under Bumper and Johnson, the simple answer is when it is not given “freely and voluntarily.” These cases establish that the burden is on the State to show by clear and convincing evidence that the consent was freely and voluntarily given, positive and unequivocal, and not the result of actual or implied duress or coercion. Johnson at 286; Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985). Consent cannot be physically or psychologically coerced. Johnson at 287. Consent to search is not to be lightly inferred, and the State’s burden cannot be discharged by showing mere acquiescence to a claim of lawful authority. Kolb v. State, 532 S.W.2d 87, 89-90 (Tex. Crim. App. 1976). Whether a consent to search was in fact voluntary is a question of fact to be determined from the “totality of the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Meeks at 510.

In Fontenot v. State, 792 S.W.2d 250, 253-54 (Tex. App. — Dallas 1990), the Dallas Court of Appeals established a list of factors to be examined when determining whether a defendant freely and voluntarily consented to a search:

  1. whether, and to what extent, officers exhibited a show of force, including a display of weapons,
  2. whether the actions of the arresting officers can be classified as flagrant misconduct,
  3. whether the police threatened to obtain a search warrant if the detainee did not acquiesce, or whether the police claimed a right to search,
  4. whether police first gave defendant the Miranda warnings,
  5. whether the arrest was made in order to obtain consent,
  6. whether defendant knew that he could refuse to allow a search,
  7. whether consent was first offered by defendant or was in response to police request,
  8. defendant’s education, intelligence, and physical condition, and
  9. the proximity of the consent to the arrest, since an intervening time period can provide a degree of attenuation of the taint.

While all of these factors are obviously important to consider, I’m going to focus on the five that I have seen come up the most in my practice over the years.

Show of Force

How often these days as defense practitioners do we see one on one encounters between an officer and a defendant during a traffic stop? Not very often I would say. Most traffic stops usually eventually involve at least two patrol cars, often more than that, with at least two to four, sometimes more, officers being present by the time the person stopped makes the fateful decision to “consent” to a search of his or her vehicle. In evaluating the validity of consent, a court may look to the fact that it was obtained in an environment with numerous officers present. Johnson at 287. Obviously, when officers draw their weapons, again a frequent occurrence in today’s world, a defendant is going to feel hesitant to refuse consent for a search. Finally, the presence of officers in plain clothes has been held to be a factor contributing to the coerciveness of the environment. U.S. v. Carbajal, 883 F. Supp. 148, 152 (W.D. Tex. 1995).

The Threat to Obtain a Search Warrant

I would argue if this happens (which as we all know as defense attorneys it frequently does), you have a very good case that a consent was ineffective – the main argument being how can someone effectively exercise their constitutional rights by refusing to consent to a warrantless search if they believe they can’t stop the search anyway? The importance of this cannot be overstated because it relates so closely to the next factor, namely:

Did the Defendant Know He Could Refuse the Search?

How often have you asked a client in frustration, “Why in the world did you say yes?” only to hear in response “I didn’t think I could say no”? Whether because of a threat to obtain a search warrant, the fact that no Miranda warnings are given prior to a search request, or the infrequency with which officers explain to a suspect that they do not have to consent to a search, it is an all-too-common reality for our clients to just allow police officers to conduct warrantless searches. The truth is, however, that the State will certainly have difficulty showing by clear and convincing evidence that a defendant knew he or she could refuse a search if the police basically told that person the search was inevitable because they were going to get a warrant anyway. Further, an argument can be made for ineffective consent when no Miranda warnings or explanation of the suspects right to refuse consent are given.

Consent First Offered by a Defendant versus In Response to a Police Request

In my experience, cases where a suspect says “Go ahead and look” are greatly outnumbered by those where the officer says “Mind if I take a look?”, meaning that consent is much more commonly offered in response to a police request as opposed to being volunteered so that this factor often aids the Defendant.  In my opinion, to effectively argue ineffective consent in the rarer cases where a client volunteers to a search, you better have a great number of officers with guns drawn, preferably in plain clothes, not reading Miranda warnings, and behaving badly in general.

Other Ineffective Consent Factors

Years ago, I successfully argued ineffective consent to a warrantless search of our clients home leading to the granting of a Motion to Suppress Evidence and a dismissal of all charges. We had a large number of officers in plain clothes, lack of Miranda warnings prior to the “consent,” and a claim of a right to search by the lead officer (“What we normally do in these situations is search the place and if we don’t find anything we leave”). In addition, we had two other factors that helped:

(1) Remember consent forms? I vaguely do, maybe. But that is the point – they do exist and are simply not used by police when conducting warrantless searches. In our case, the lead officer admitted they were available but not used on the day of their warrantless search of our client’s home Having a suspect sign a consent to search form explaining his or her constitutional rights to refuse to allow a search would really clarify these issues and ensure that the suspect’s consent was freely and voluntarily given. It follows that failure to obtain a written consent to search or provide a recording of the consent is another factor favoring a defendant when a court is determining whether a consent was effective.

(2) Our client repeatedly asked “Don’t you need a warrant?” and was ignored by the officers – he stated that he never actually consented to the search and that the officers had simply entered his house without permission. The officers stated that our client did consent to the search, but also asked about a warrant. In my brief, I cited two Florida cases involving this issue, including a Florida Supreme Court holding that the defendants’ question as to whether the arresting officer had a search warrant “clearly indicated that they did not consent to the search.” State v. Casal, 410 So. 152, 155 (Fla. 1982).

This is a big one. If a suspect asks the question “Don’t you need a warrant?” it is difficult for the State to argue that he or she is consenting to a search because the suspect is in effect telling the officer they want a warrant to be obtained if required by law. In addition, one of three things can happen if this question is asked, all of which point to a positive result for the suspect/defendant. The officer can answer yes, in which case the search hopefully doesn’t happen or a warrant is obtained. The officer can answer no, which, if true, makes the issue of consent irrelevant, or, if not true, violates a number of the factors discussed above and any consent would most certainly be found to be ineffective. The officer can also ignore the question, which is, in effect an answer of no with the resulting consequences to the State’s case.

Conclusion

The late Justice Jackson once eloquently described what is in many ways very difficult to describe, namely the overwhelming importance of the protections provided by the Fourth Amendment to the Constitution of the United States of America:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists of requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be determined by a judicial officer, not by a policeman or Government enforcement agent . . . Any other rule would undermine “the right of the people to be secure in their persons, houses, papers and effects,” and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.

Johnson v. United States, 333 U.S. 10, 13-14, 17 (1948).

Because in the practice of criminal defense we so often deal with warrantless searches, it sometimes is easy to forget that these searches are supposed to be the exceptions, not the rule. We must, however, remember this, because it is our duty and our responsibility to ensure that the Government remembers it as well.

Craig Flory
October 27, 2016