What is a Consent Search?

Christina Edwards

In the United States, the Fourth Amendment to the Constitution protects all individuals against illegal and unreasonable search and seizure. This means that law enforcement officials must technically get written permission from a court before searching any property. When a people waive their Fourth Amendment rights, the search performed by authorities is known as a consent search. For a consent search to legally take place, an individual must voluntarily give up this right without being threatened or coerced in any way.

A consent search may be done on an individual who has been arrested.
A consent search may be done on an individual who has been arrested.

When authorities question a person about suspicious activity, or when law enforcement officials suspect some sort of criminal activity, they may want to search for evidence. This can mean the search of a person or of a property, such as a house, business, or vehicle. Before searching the premises, the law enforcement officials usually ask for permission to search. If an individual allows them access, he has then agreed to a consent search.

If consent is not given, law enforcement officials may then have to get a warrant to conduct a search.
If consent is not given, law enforcement officials may then have to get a warrant to conduct a search.

Agreement to a consent search must be verbal. Unspoken consent, such as a nod or other gesture, is not considered consent. For example, imagine Bill is sitting at home one night when a police officer knocks on the door and explains that he has reason to believe there is some sort of illegal activity happening there, and he asks Bill if he may perform a property search. Simply stepping away from the door and waving the officer in would not amount to consent. Bill must say something along the lines of "yes, I consent to the search."

Consent search is given on any luggage that is carried by someone boarding a plane.
Consent search is given on any luggage that is carried by someone boarding a plane.

Individuals who can legally agree to a consent search can be anyone who appears to have the authority and mental capacity to do so. This can even include children and any guests that are staying at the residence. A ruling in the case of Illinois versus Rodriguez in 1990 stated that if a person giving consent to a search seems to have some authority over the property, the search can be considered valid.

After agreeing to a consent search, in most cases, a person can still halt the search at any time afterward. To stop a consent search, however, a person must clearly state that he wishes for the search to be stopped. Exceptions to this rule include airplane passengers with luggage already in an x-ray machine and individuals visiting prison systems. Also, once law enforcement officials establish reasonable suspicion that illegal activity is taking place, an individual loses his right to stop the search. Once an individual has been arrested, he is also subject to a search to make sure that he does not have anything on him that could harm himself or others.

Although it is the easiest way to conduct a search, many times officers can not obtain agreement for a consent search for a number of reasons. If consent is not given, law enforcement officials may then have to get a warrant. This is usually given by a judge or magistrate, and it allows law enforcement officials to enter a property and search and confiscate any evidence.

Patrol officers may conduct consent searches as part of a traffic stop.
Patrol officers may conduct consent searches as part of a traffic stop.

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