SEARCHING A VEHICLE WITHOUT A WARRANT

SEARCHING A VEHICLE

WITHOUT A WARRANT

Consent Searches

Bryan R. Lemons

Senior Instructor

BACKGROUND

“It is well-settled that one of the

specifically established exceptions to the

requirements of both a warrant and

probable cause is a search that is

conducted pursuant to consent.”

When a

law enforcement officer obtains valid

consent to search a vehicle, neither

reasonable suspicion, nor probable cause,

is required. Thus, “in situations where the

police have some evidence of illicit

activity, but lack probable cause to arrest

or search, a search authorized by valid

consent may be the only means of

obtaining important and reliable

evidence.”

REQUIREMENTS

There are two requirements for a

consent search to be valid. First, the

consent must be voluntarily given. Both

“the Fourth and Fourteenth Amendments

require that a consent not be coerced, by

explicit or implicit means, by implied

threat or covert force.”

In making this

determination, courts will look at the

“totality of the circumstances”

surrounding the giving of the consent,

because “it is only by analyzing all the

circumstances of an individual consent

that it can be ascertained whether in fact it

was voluntary or coerced.”

Factors to

Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973)(citation omitted)

Id. at 227

Id. at 228

Id. at 223

consider in making this determination

include, but are not limited to, the age,

education, and intelligence of the

individual;

the individual’s knowledge of

his or her right to refuse to give consent;

whether the individual cooperated in the

search;

whether the suspect was in

custody at the time the consent was given;

the suspect’s belief that no incriminating

evidence will be found;

the presence of

coercive police procedures, such as

displaying weapons or using force;

and

the suspect’s experience in dealing with

law enforcement officers.

Additionally,

a law enforcement officer who has

lawfully detained a suspect during a

vehicle stop is not required to inform the

suspect that he or she is free to leave

before obtaining a valid consent to

search.

If a suspect is under arrest, there

is no requirement that law enforcement

officers notify the individual of his or her

Miranda rights

prior to requesting

consent, even if the individual has

previously invoked his right to silence or

right to counsel. “A consent to search is

not the type of incriminating statement

toward which the Fifth Amendment is

directed. It is not in itself ‘evidence of a

testimonial or communicative nature.’”

Id. at 226

Id. at 227

United States v. Carrate, 122 F.3d 666, 670 (8

Cir. 1997)(Suspect “idly stood by while the

troopers searched his car, never indicating that he

objected to the search”)

Id.

United States v. Asibor, 109 F.3d 1023, 1038 n.14

Cir.), cert. denied, 522 U.S. 902

(1997)(Explaining six factors analyzed to

determine voluntariness of consent)

Id. See also Orhorhaghe v. Immigration and

Naturalization Service, 38 F.3d 488, 500 (9

Cir.

1994)

United States v. Barnett, 989 F.2d 546, 556 (1

Cir. 1993)

Ohio v. Robinette, 519 U.S. 33, 40 (1996)

Miranda v. Arizona, 384 U.S. 436 (1966)

United States v. Lemon, 550 F.2d 467, 472 (9

Further, “there can be no effective

consent to a search or seizure if that

consent follows a law enforcement

officer’s assertion of an independent right

to engage in such conduct.”

For

example, if an individual gives consent

only after a law enforcement officer

asserts that he or she has a warrant, the

consent is not truly being given

voluntarily, because the officer is

“announcing in effect that the [individual]

has no right to resist the search.”

Orhorhaghe v. Immigration and

Naturalization Service,

the court found

that the suspect’s consent had not been

voluntarily given because, among other

things, a law enforcement officer had

informed him “he (the officer) didn’t need

a warrant.” This statement on the part of

the law enforcement officer “constituted

… an implied claim of a right to conduct

the search.”

The burden of proving that

the consent was voluntarily given rests

with the prosecutor, and “cannot be

discharged by showing no more than

acquiescence to a claim of lawful

authority.”

The second requirement for a

consent search is that the consent must be

Cir. 1977). See also Cody v. Solem, 755 F.2d

1323, 1330 (8

Cir.), cert. denied, 474 U.S. 833

(1985)(“Simply put, a consent to search is not an

incriminating statement”); Smith v. Wainwright,

581 F.2d 1149, 1152 (5

Cir. 1978)(“A consent to

search is not a self-incriminating statement”);

United States v. Faruolo, 506 F.2d 490, 495 (2

Cir. 1974)(“There is no possible violation of Fifth

Amendment rights since consent to search is not

‘evidence of a testimonial or communicative

nature.’”); and United States v. Glenna, 878 F.2d

967, 971 (7

Cir. 1989).

Orhorhaghe, supra at note 15. See also Bumper

v. North Carolina, 391 U.S. 543, 550 (1968)

Bumper, 391 U.S. at 550

Supra, at note 15

Id. at 501

Bumper, 391 U.S. at 550

given by an individual with either actual or

apparent authority over the place to be

searched. “Actual” authority may be

obtained “from the individual whose

property is searched.”

Additionally,

consent to search may be given by a third-

party “who possesses common authority

over or other sufficient relationship to the

… effects sought to be inspected.”

noted by the Supreme Court in United

States v. Matlock:

Common authority is, of

course, not to be implied

from the mere property

interest a third-party has in

the property. The authority

which justifies the third-

party consent does not rest

upon the law of property,

with its attendant historical

and legal refinements …,

but rests rather on mutual

use of the property by

persons generally having

joint access or control for

most purposes, so that it is

reasonable to recognize that

any of the co-inhabitants

has the right to permit the

inspection in his own right

and that the others have

assumed the risk that one of

their number might permit

the common area to be

searched.

Within the context of vehicle

searches, third-party consent most

commonly arises in two distinct situations.

Illinois v. Rodriguez, 497 U.S. 177, 181

(1990)(citation omitted)

United States v. Matlock, 415 U.S. 164, 171

(1974)

Id.

Id. at 171 n.7

In the first, a third-party has sole

possession and control of the vehicle of

another. In that case, the third-party has

the authority to consent to a search of the

vehicle

and any evidence discovered

during the consensual search may be used

against the actual owner of the vehicle.

By relinquishing possession

to another, the owner or

lessee of the vehicle

evidences an abandonment

of his or her privacy

interest in the vehicle; thus,

it is reasonable to conclude

that the third party to whom

possession was surrendered

was also given authority to

consent to a search of all

areas of the vehicle.

In a second, but distinct, third-

party consent scenario, the third-party

driver of the vehicle consents to a search

while the owner is present as a passenger.

In such a case, “it is clear … that even if

the owner/lessee is present as a passenger,

the driver of a vehicle has some amount of

joint access to the vehicle, and, in fact, the

driver has immediate control over the

vehicle.”

Nonetheless, a critical factor

considered by the courts in these scenarios

is whether the owner/passenger objected to

the search. If so, the driver’s consent is

most likely inadequate. However, where

the owner/passenger remained silent

during the search, courts are inclined to

find the driver’s consent valid. For

United States v. Morales, 861 F.2d 396, 399 n.8

Cir. 1988); United States v. Diaz-Albertina,

772 F.2d 654, 658-659 (10

Cir. 1985), cert.

denied, 484 U.S. 822 (1987)

Matlock, 415 U.S. at 170

United States v. Dunkley, 911 F.2d 522, 526 (11

Cir. 1990)(per curiam), cert. denied, 498 U.S. 1096

(1991)(citation omitted)

Id.

example, in United States v. Fuget,

the

court noted that:

The driver of a car has the

authority to consent to a

search of that vehicle. As

the driver, he is the person

having immediate

possession of and control

over the vehicle. The

‘driver may consent to a

full search of the vehicle,

including its trunk, glove

box and other components.’

This is true even when

some other person who also

has control over the car is

present, if the other person

remains silent when the

driver consents and does

not object to the search.

Finally, a law enforcement officer

may obtain consent from an individual

who has “apparent” authority over the

place or item to be searched. This

typically occurs when a law enforcement

officer conducts a warrantless search of a

vehicle based upon the consent of a third-

party whom the officer, at the time of the

search, reasonably, but erroneously,

believed possessed common authority over

the vehicle.

If the officer’s belief that the

third-party had authority to consent is

“reasonable,” considering all of the facts

available at the time the search is

conducted, the search will still be valid.

984 F.2d 943, 948 (8

Cir. 1993)

Id. (citations omitted). See also Dunkley, supra

at 526 (Driver’s consent valid where passenger

with superior possessory interest failed to object,

thus confirming that driver “had the requisite

authority to consent to the search of the vehicle”);

Morales, supra at 400 (Passenger’s silence during

officer’s inspection of vehicle “material in

assessing driver’s authority”)

Rodriguez, 497 U.S. at 186

SCOPE

The scope of where a law

enforcement officer may search is

generally controlled by the degree of

consent given to the officer. “The

standard for measuring the scope of a

suspect’s consent under the Fourth

Amendment is that of ‘objective’

reasonableness – what would the typical

reasonable person have understood by the

exchange between the officer and the

suspect?”

An individual may limit the

scope of any consent.

In such a case, the

scope of a consent search “shall not

exceed, in duration or physical scope, the

limits of the consent given.”

Should a

law enforcement officer fail to comply

with the limitations placed on the consent,

“the search is impermissible.”

Individuals may also revoke their consent.

When consent is revoked, a law

enforcement officer must cease searching,

unless another exception to the Fourth

Amendment’s warrant requirement is

present (e.g., probable cause to search a

vehicle).

Florida v. Jimeno, 500 U.S. 248, 251

(1991)[citing United States v. Ross, 456 U.S. 798

(1982)]

Id. at 252 (“A suspect may of course delimit as

he chooses the scope of the search to which he

consents”). See also Walter v. United States, 447

U.S. 649, 656 (1980)(plurality opinion)(“When an

official search is properly authorized – whether by

consent or by issuance of a valid warrant – the

scope of the search is limited by the terms of its

authorization”)

ARTICLE, “Supreme Court Review: Fourth

Amendment – Expanding the Scope of Automobile

Consent Searches,” 82 J. CRIM. L. &

CRIMINOLOGY 773, 777 (1992)

United States v. Strickland, 902 F.2d 937, 941

(11

Cir. 1990)

United States v. Fuentes, 105 F.3d 487, 489 (9

Cir. 1997)(Suspect effectively revoked consent by

shouting “No, wait” before officer could pull

cocaine out of pocket)

When dealing with vehicles, law

enforcement officers may specifically ask

for permission to search both the

passenger compartment of the vehicle, as

well as the vehicle’s trunk. If consent is

given, a valid search of those areas may

proceed. However, a more common

scenario in consent search cases involves a

law enforcement officer asking, in general

terms, for permission to search “the car.”

“When an individual gives a general

statement of consent without express

limitations, the scope of a permissible

search is not limitless. Rather, it is

constrained by the bounds of

reasonableness: what a police officer could

reasonably interpret the consent to

encompass.”

When a law enforcement

officer asks for permission to “search the

car,” and “the consent given in response is

general and unqualified, then the officer

may proceed to conduct a general search

of that [vehicle].”

In United States v.

Rich,

the Fifth Circuit Court of Appeals

held that “an individual’s consent to an

officer’s request to ‘look inside’ his

vehicle is equivalent to general consent to

search the vehicle and its contents,

including containers such as luggage.”

The court in Rich raises the issue

of when a consent search will allow a law

enforcement officer to search a container

located inside of a vehicle. Turning first

to unlocked containers, a law enforcement

officer may specifically seek permission to

search any unlocked container in the

vehicle. If the permission is granted, a

search may commence. May a law

Strickland, 902 F.2d at 941

Lafave, Wayne, 3 SEARCH AND SEIZURE: A

TREATISE ON THE FOURTH AMENDMENT, §

8.1(c) p. 610 (1996)

United States v. Crain, 33 F.3d 480 (5

Cir.

1994)

Id. at 484

enforcement officer who seeks general

permission from a suspect to “search the

car” also search any unlocked containers

found within the vehicle? This issue was

addressed by the Supreme Court in

Florida v. Jimeno,

where a law

enforcement officer stopped the defendant

for a traffic violation. The officer believed

that the suspect was carrying drugs in the

vehicle and requested permission to search

it. The defendant gave the officer

permission to search the vehicle, stating

that he had “nothing to hide.” While

searching, the officer came across a brown

paper bag located on the floorboard of the

vehicle. He opened it and found cocaine

inside. In response to the defendant’s

claim that the officer had exceeded the

scope of the consent he was given, the

Supreme Court held that where a suspect

consents to a general search of his vehicle,

it is reasonable for an officer to search any

unlocked containers located inside the

vehicle. According to the Court:

We think it was objectively

reasonable for the police to

conclude that the general

consent to search the

respondent’s car included

consent to search containers

within that car which might

bear drugs. A reasonable

person may be expected to

know that narcotics are

generally carried in some

form of a container.

‘Contraband goods rarely

are strewn across the trunk

or floor of a car.’ The

authorization to search in

this case, therefore,

extended beyond the

surfaces of the car’s interior

Jimeno, 500 U.S. at 251

to the paper bag lying on

the car’s floor.

The Court further noted that, if the

consent “would reasonably be understood

to extend to a particular container,”

a law

enforcement officer does not have to

specifically request permission to search

each closed container found within the

vehicle. In United States v. Snow,

the

Second Circuit Court of Appeals held that

“an individual who consents to a search of

his car should reasonably expect that

readily-opened, closed containers

discovered inside the car will be opened

and examined.”

However, law enforcement officers

must remember that the individual giving

consent must have either actual or

apparent authority over the item to be

searched. If the individual does not have

the requisite authority, the container may

not be searched. For example, in United

States v. Welch,

the driver gave consent

to search his rental car. A female

passenger in the vehicle had a purse stored

in the trunk. Upon opening the purse, the

police discovered $500.00 in counterfeit

bills. The woman appealed her

conviction, claiming that the police had

illegally searched her purse without

probable cause or valid consent. The

Ninth Circuit Court of Appeals agreed,

noting that the key issue in the case was

not whether the driver could consent to a

search of the vehicle generally, but rather

whether the driver “had the authority,

either actual or apparent, to give effective

Id. (citation omitted)

Id. at 252

United States v. Snow, 44 F.3d 133 (2

Cir.

1995)

Id. at 135

4 F.3d 761 (9

Cir. 1993)

consent to the search of his companion’s

purse.”

By sharing access to and

use of the car with McGee,

Welch relinquished, in part,

her expectation of privacy

in the vehicle. McGee’s

voluntary consent to a

search is sufficient to waive

Welch’s Fourth

Amendment interests in the

car. Welch’s purse is

another matter entirely.

The fact that she had a

limited expectation of

privacy in the car by virtue

of her sharing arrangement

with McGee does not mean

that she had similarly

limited privacy expectation

in items within the car

which are independently

the subject of such

expectations. The shared

control of ‘host’ property

does not serve to forfeit the

expectation of privacy in

containers within that

property.

We see that when dealing with

passenger’s belongings located in a

vehicle, a law enforcement officer must

seek a separate consent from that

individual to search those containers. A

failure to do so may result in a finding that

the officer exceeded the scope of the

consent given, and the suppression of any

evidence found in the container as a result.

The search of a locked container

located in a vehicle presents distinct

Id. at 764 (emphasis in original)(footnote

omitted)

Id. (citation omitted)

problems for a law enforcement officer.

For example, while upholding the officer’s

actions in Jimeno, the Supreme Court

emphasized that the result may have been

different had the container in question

been locked, such as a locked briefcase:

“[I]t is very likely unreasonable to think

that a suspect, by consenting to the search

of his trunk, has agreed to the breaking

open of a locked briefcase within the

trunk, but it is otherwise with respect to a

closed paper bag.”

In assessing whether

the consent given encompassed a locked

container, the court will look to the

exchange between the law enforcement

officer and the suspect, as well as “the

manner in which the officer gained access

to the container.”

For example, in

United States v. Strickland,

the Eleventh

Circuit Court of Appeals addressed

whether it was reasonable for a law

enforcement officer to slash the spare tire

found in the trunk of the suspect’s vehicle

after being given permission for a general

search. In finding that the officers

exceeded the permissible scope of the

consent given, the court stated:

[U]nder the circumstances

of this case, a police officer

could not reasonably

interpret a general

statement of consent to

search an individual’s

vehicle to include the

intentional infliction of

damage to the vehicle or

the property contained

within it. Although an

individual consenting to a

vehicle search should

Jimeno, 500 U.S. at 251

United States v. Gutierrez-Mederos, 965 F.2d

800, 804, (9

Cir. 1992), cert. denied, 507 U.S. 932

(1993)

Supra at note 38

expect that search to be

thorough, he need not

anticipate that the search

will involve the destruction

of his vehicle, its parts or

contents. Indeed, it is

difficult to conceive of any

circumstance in which an

individual would

voluntarily consent to have

the spare tire of their

automobile slashed. Unless

an individual specifically

consents to police conduct

that exceeds the reasonable

bounds of a general

statement of consent, that

portion of the search is

impermissible.

Similarly, the court in Snow, supra,

reached the same conclusion, where the

searches of a duffel bag and another bag

were upheld because, among other things,

“no damage to the bags was required to

gain access.”

In sum, it is unreasonable to

believe that individuals who give a general

consent to search are consenting to having

their property damaged or destroyed.

When dealing with a locked container, a

law enforcement officer should seek

express permission to search that item. If

the consent is granted, the search may

proceed. In order to support the

reasonableness of any such search, a law

enforcement officer should refrain from

damaging or destroying the container in

the process of opening it. If a key is

necessary, for example, the officer should

Id. at 941-942

Snow, supra at note 48

obtain the key and utilize it to gain access

to the container.