Question: (1) Must a suspect’s consent to a search be explicit? (2) Must a peace officer inform a suspect that he has a right to refuse consent?
Quick answer: (1) No. A suspect’s consent may be implied by his conduct. (2) No. An individual doesn’t need to be aware of his right to refuse consent to a search.
Facts: While on patrol, a state trooper noticed that a vehicle on the highway had a defective windshield, so he pulled the vehicle over. The car pulled into a gas station, and once it came to a stop, the passenger, defendant Scott Miller, got out of the car. The trooper told him to stay inside the vehicle. He approached the driver to ask for his license and registration and then learned that the car’s plates were expired and the driver’s license was suspended. The trooper asked the driver to follow him back to his cruiser. He questioned the driver about what might be inside the vehicle until the driver finally admitted that Miller had marijuana. The trooper then approached Miller and asked him to step out of the car. He also asked Miller about what might be inside the car and asked if he could pat down Miller’s clothing. Miller’s responses to the questions were inaudible on the trooper’s cruiser camera. The trooper performed the pat-down anyway and asked Miller what was in his pants pockets. Miller removed a pack of cigarettes, a cell phone, and eventually removed a small bag of Diazepam pills. The trooper arrested Miller for drug possession, and, in a search incident to arrest, he discovered marijuana in Miller’s underwear. Miller filed a motion to suppress the drugs because he never consented to the pat-down and search of his clothing.
Why this case is important: The court found that Miller voluntarily consented to the trooper’s pat-down and search. Warrantless searches generally are unreasonable, but a warrant and probable cause are not needed when a suspect consents to a search. A suspect’s consent may be implied from the surrounding circumstances, the suspect’s previous actions or agreements, or his failure to object to the search. However, consent isn’t voluntary if it was obtained by coercive threats, force, or in an officer’s claim of lawful authority.
Here, Miller’s actions and behavior implied that he voluntarily consented to the trooper’s request to pat him down and search his clothing. The trooper requested Miller’s consent, and Miller gave no explicit indication that he refused. In fact, when the trooper asked Miller what was in his pockets, Miller willingly pulled out the cigarettes, his phone, and the bag of pills. Also, the trooper’s initial command for Miller to stay in the car and his later request for Miller to “hop out” of the car were not coercive or threatening acts that affected the voluntariness of Miller’s consent. Traffic stops carry inherent dangers, so law enforcement officers are entitled to exercise authority over the driver and any passengers for safety purposes. Finally, the trooper had no constitutional requirement to inform Miller that he had a right to refuse consent. Because Miller’s conduct never specifically showed that he didn’t consent to the trooper’s requests, his consent was voluntary.
Keep in mind: A suspect may voluntarily consent even when he has not explicitly said, “I give you my permission to search.” There is no bright-line test to know whether a suspect has implied consent, so beyond a suspect’s words, you should observe his conduct to see if he appears cooperative. Also, you may request consent to search without any constitutional obligation to tell the suspect that he has a right to refuse.
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