Law Enforcement Bulletin 

Question: Does the State’s inability to produce a signed consent-to-search waiver render a subsequent search invalid?

Quick Answer: No, the courts will still use a totality-of-the-circumstances test to determine if the consent was given voluntarily.

Facts: Deputies went to Clements’ home based on complaints of methamphetamine manufacturing. After deputies initially spoke to his daughter, Clements returned to his residence and spoke with the deputies outside. After explaining why they were there, they asked Clements for permission to search the residence. He then signed a written waiver form. The deputies searched the residence and found methamphetamine in a safe. Clements filed a motion to suppress, which was denied, and he was found guilty of manufacturing methamphetamine and possession of drugs. He appealed, arguing that the warrantless search was invalid. During the initial hearing, the state failed to produce the written waiver, contending it was lost. The court found there was competent, credible evidence, including the officers’ testimony, that Clements signed the form. The court noted Clements was not in custody; the consent occurred in his front yard rather than a police station; there were no threats or promises made; and he willingly told deputies there was marijuana in a safe which also contained methamphetamine. Finally, the court said, although Clements was not told he could refuse the search, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.

Keep in Mind: Although consent to search does not have to be in writing, the best practice is to obtain it in writing or document it by use of video or audio recording.