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Media > Newsletters > Law Enforcement Bulletin > January 2013 > Big Picture Issue: Consent

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Big Picture Issue: Consent

This is part of an occasional series of articles on broad law enforcement topics.

Consent is one of the most important exceptions to the search warrant requirement because it requires no level of suspicion. An officer can ask any person for consent to search a home, car, or container over which that the person has authority. In its broadest sense, consent is the voluntary agreement of one person to let another person do something.

But like any legal term, consent is more complicated than it seems. First, what does “voluntary” mean? That depends on the facts and circumstances surrounding the consent, which is lawyer talk for, “Voluntary is whatever the court says it is.” 
It might be easier to think of what isn’t “voluntary.” For example, any consent obtained by coercion or a claim of authority is invalid. Let’s say you pull someone over and tell them, “You can let me search your car, or I’m going to write you a ticket.” That’s not voluntary consent because you are threatening the individual. Or, if you say, “I can arrest you for what you’ve done and then search your car anyway, so why don’t you just agree to let me search it now?” Again, you can’t threaten someone into a voluntary decision.
On the other hand, once consent is voluntarily given, it doesn’t matter whether the person knew they could refuse. Unlike Miranda warnings, you don’t have to tell someone, “I’d like to search your car, but you have the right to say no.”
Consent is also common sense. Don’t expect a court to uphold the consent when the other person didn’t speak English and couldn’t understand what you were asking, or if the other person is a 5-year old. A person must be able to really understand what they are doing when they consent. 
Consent also applies when a law enforcement officer approaches a person on the street or at his home, where an officer can ask the person questions without needing reasonable suspicion or probable cause. As long as the person feels free to walk away or not answer your questions, then the encounter is consensual.
With all this in mind, though, there are no black and white answers in the law, so it’s important to think of consent as a continuum. For example, if a person gives officers consent to search his garage, this consent doesn’t extend to the inside of his home. The scope of an agreed-upon search can’t exceed the scope of the consent given.
These are important concepts to think about when reading this month’s cases and when you are out on the job.