Waiving the Warrant Requirement: Consent

As is true of most constitutional rights, the right to be free from warrantless searches can be waived. Police investigations rely every day on such consent. Owners of vehicles and luggage allow officers to search their effects, and occupants of houses allow officers to enter and look around. There is no dispute about the principle that genuine consent serves as a valid substitute for a search warrant. The controversial questions include what is necessary for consent to be valid, who may provide valid consent, and whether certain police tactics render otherwise-valid consent ineffective.  Consent to search must be 1) voluntary—it cannot be coerced through threats or force; 2) made by an individual with apparent or actual authority over the property to be searched.  Your neighbor cannot consent to the search of your car.

Notes, Comments, and Questions 

The Court addressed consent searches on Greyhound buses in United States v. Drayton, 536 U.S. 194 (2002). There, the Court held that police officers could board a bus and ask for permission to search the property of passengers, as long as under the totality of the circumstances the officers obtained valid consent. The majority reiterated that officers need not advise passengers of their right to leave or to refuse consent. Previously, in Florida v. Bostick, 501 U.S.429 (1991), the Court held that officers may approach bus passengers at random to ask questions and request their consent to searches, provided “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” See also Ohio v. Robinette, 519 U.S. 33 (1996) (rejecting rule created by Ohio judges that required officers at traffic stops to state “‘At this time you legally are free to go’ or [] words of similar import” before initiating extra questioning or seeking consent to search).

Consider the following scenarios:

A police officer assigned to be a “school resource officer” at a high school confronts a student who has been sent to the principal’s office for disrespectful classroom behavior. The officer says, “You must be on drugs to act so stupid. Let me see what’s in that backpack, and then you can go see the principal.” If the student hands over the backpack, does the officer have valid consent to search it? Why or why not?

A police officer has probable cause to believe that drugs are being stored at a certain house. The officer, without a warrant, knocks on the door. When someone answers, the officer says, “I could get a warrant to search this house for drugs, but I’d rather save myself the trouble. If you let me look around the house and I don’t find anything, I’ll move on to other business. But if you refuse, I’ll be back soon with a warrant, and my partner and I will search this place from top to bottom.” If the person at the door admits the officer inside, does the officer have valid consent to enter and search the house? Why or why not? 


Icon for the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Criminal Procedure: Undergraduate Edition Copyright © 2022 by Christopher E. Smith is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

Share This Book