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Obtaining written consent to search. (Legal Digest).

The Fourth Amendment preserves the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (1) It is well settled that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." (2) The U.S. Supreme Court has stated that a search conducted pursuant to lawfully given consent is an exception to the warrant and probable cause requirements of the Fourth Amendment. (3)

In Schenkloth v. Bustamonte, (4) the U.S. Supreme Court ruled that a court reviewing whether an individual voluntarily consented to a search must consider the totality of the circumstances surrounding the consent. An individual need not provide written consent for a search of his or her person or property to a law enforcement officer for a consent search to be valid. Even though a writing is not legally required, law enforcement officers often will ask an individual for written consent to search to provide evidence of voluntariness.

This article considers the particular issues that courts analyze regarding written consent to search. These issues include the evidentiary significance of a written consent to search form, the presentation of a consent to search form to an individual, the impact of a person's refusal to sign a written consent to search, and the content of consent to search forms.

Evidentiary Significance

The government has the burden of proving that an individual voluntarily consented to a search. (5) The presence of a writing reflecting that an individual consented is, therefore, quite significant, (6) and evidence that an individual signed a statement of consent to a search has been found to be a clear indication of voluntariness. (7) The lack of a writing memorializing a consent to search also may be noted by a court, (8) as may the failure of an officer to use an available written consent form. (9) One court has stated, "[o]f course, a written consent to a search is not a legal requirement, but law enforcement officers fail to obtain a written consent when one readily could be obtained at the risk that the government's ability to prove the voluntariness of a consent will be seriously compromised." (10)

The decision by the U.S. Court of Appeals for the Seventh Circuit in United States v. Duran" (1) is an excellent example of the role a signed written consent can play in a court's analysis. In Duran, Cesar Duran's wife, Karen, took a pair of new tennis shoes back to a shoe store to obtain help lacing them. Karen left the shoes with a store employee and went shopping elsewhere in the mall. The store employee discovered three packages of what appeared to be marijuana in the shoes and called the police. The police arrived at the store and determined that the packages did contain marijuana. The police arrested Karen when she returned to the store. The officers also found $3,000, a small amount of cocaine, and drug paraphernalia in her purse. The officers read Karen her Miranda warnings and took her to the police station.

At the police station, Karen told the officers where she lived and admitted that her husband sold large quantities of marijuana in the local area. Karen also signed a form consenting to a search of the Duran residence, an old farmhouse on the property, and several outbuildings. The police arrested Cesar after finding 28 pounds of marijuana and a number of weapons during the search.

In considering Cesar's challenge to Karen's consent to search, the Duran court specifically pointed to the consent form signed by Karen. The court rejected Cesar's argument that the fact that this was Karen's first arrest should be given weight, noting that the form's language stating that she could refuse to consent and that any evidence discovered could be used against her put her on par with an experienced arrestee in terms of what she needed to know. The court stated, "[t]hat the form contained these warnings, in fact, weighs heavily toward finding that her consent was voluntary." (12)

Signing the Form

Circumstances surrounding the signing of a written consent will be analyzed carefully by a court. Even though an individual signed a consent to search form, the consent to search still may be found invalid. Factors that courts will consider in determining if the consent was voluntary include the characteristics of the subject giving the consent, the environment in which the consent is given, the actions taken or statements made by the subject giving the consent, (13) and the actions taken or statements made by law enforcement officers during the course of asking for consent to search. (14)

The extent to which law enforcement officers maintain a non-coercive environment in which a written consent to search is obtained also is significant. (15) For example, what is said if the individual asks questions or makes statements about the form or while signing it (16) and how many law enforcement officers are present when the form is signed will be factors considered by a court. (17) Moreover, courts also have examined the following factors when deciding if a person has given voluntary written consent: whether the officer ascertained the ability of the individual to read, (18) whether the officer saw the individual read the form, (19) whether the officer read the form out loud to the individual, (20) whether the officer explained the content of the form to the individual, (21) whether there was adequate light in which to read the form, (22) whether there was enough time to read the form, (23) whether the officer accurately translated the form while reading it out loud, (24) whether the form adequately indicated that the individual is consenting to the search if it is in another language, (25) whether the individual was allowed to change the language of the form, (26) whether the individual made a phone call prior to signing the form, (27) and whether the form was signed before or after the search occurred. (28)

The 1995 decision of the U.S. Court of Appeals for the Eleventh Circuit in United States v. TovarRico (29) is an example of a case in which an individual signed a consent to search form where the search was found invalid. In Tovar-Rico, officers followed two persons who had just obtained a substantial amount of cocaine from two undercover officers. The individuals entered an apartment building without carrying anything and were seen leaving apartment 901 a short time later. Neither person carried anything. The individuals returned to the apartment and left 10 to 15 minutes later with a third person.

One individual then removed a large amount of cocaine from the trunk of a car parked at the building and took it inside. An officer observed that individual exit unit 901. Officers arrested all of the individuals involved in the transaction who were around the apartment building and then proceeded to unit 901.

Five officers knocked on the door to unit 901, announced their identity, and requested permission to enter. When Tovar answered the door, the officers quickly entered with weapons drawn and conducted a protective sweep. The officers entered each room of the apartment while Tovar sat at the dining room table. One of the officers asked Tovar for permission to search the entire apartment. The officer told Tovar that she did not have to allow the search, but that if she did not, they would come back with a search warrant. Tovar agreed to the search and signed a written consent form.

The court rejected the argument that there were exigent circumstances that would permit a warrantless entry. The court also cited another case stating that the government does not carry its burden of proving that a consent is voluntary by showing that someone merely submitted to a claim of lawful authority. The court found Tovar' s consent was involuntary and stated that, "Tovar had already observed officers explore every room in the apartment and could not reasonably have known that she could still refuse a search.... We entertain no doubt that Tovar opened the door in response to a 'show of official authority' and cannot be deemed to have consented to the agents' entry or to have voluntarily consented to the search." (30)

In the 1999 case of United States v. Rodriguez, (31) the court held that the defendant did not voluntarily consent to a search of his car. Agents in Rodriguez obtained a search warrant to search the defendant's residence. Between 10 and 15 agents participated in the execution of the warrant, but no evidence was found during the 3-hour search. At the end of the search, an agent asked the defendant about a car parked in front of the house, which the defendant denied owning. He remained silent even when shown a bill of sale for the vehicle with his name on it.

The agent presented a written consent form printed in English for the defendant to sign. The defendant did not speak English, and, therefore, the form had to be translated into Spanish. The agent then proceeded to literally translate the form as he read it to the defendant. Notably, the agent never had obtained a person's consent to search in Spanish before, and there were Spanish-speaking officers present at the home who may have done a better job in translating. The defendant agreed to sign the consent form. As the agent filled out the form and the defendant was about to sign it, the "defendant asked [the agent] 'whether they [agents] were going to search the vehicle anyway,' to which the latter responded affirmatively." (32) The defendant signed the form. The agents found weapons in the car, which the defendant sought to suppress.

In determining whether the defendant voluntarily consented to the search, the court considered the defendant's age and criminal history and noted that there was no information in the record regarding the defendant's education, experience, intelligence, or whether he was mentally deficient. The defendant argued that he was not told that he could refuse consent, while the government stated that the consent to search form signed by the defendant advised him of his right to refuse. The court stated that whether the defendant is informed of the right to refuse consent to search is one factor to be taken into account in determining voluntariness, but indicated that the critical issue to be addressed in this case was the agent's ability to accurately translate the consent form.

The court concluded that the defendant had not voluntarily consented to the search of the vehicle. The court stated that the environment created by the agents in the home at the time the defendant's consent was obtained was implicitly coercive. More particularly, the court found it significant that when the agents obtained consent, the defendant was handcuffed, unlawfully seized, separated from the rest of his family while his crying 3-yearold daughter was left alone with one of the 10 to 15 agents in the house, and it was strongly implied that the car would be searched even if he did not consent. At the suppression hearing, the agent was asked to translate the consent form into Spanish as he had on the day in question. The court stated the following with regard to the agent's translation:

Assuming that the former translation replicated the latter, we find that defendant was ill-advised of his constitutional rights.... The translation was literal and clumsy, almost awkward sounding. While under more relaxed circumstances it would not be implausible to find that [the agent's] translation sufficiently informed defendant about some basic concepts (e.g., his right to refuse consent, his right to consult an attorney), the implicitly coercive environment created by. ..agents at defendant's home precludes such a finding. (33)

Refusal to Sign Form

In many cases, an individual will be willing to verbally consent to a search but will refuse to sign a consent to search form. In such cases, as long as the consent to search is voluntary, the verbal consent will be sufficient to allow the search. (34) Significantly, it has been held that "the refusal to execute a written consent form subsequent to a voluntary oral consent does not act as an effective withdrawal of the prior oral consent." (35) In one case, a court held that the prior verbal consent of a suspect was sufficient even though the individual failed to read, but signed, a consent form that had been incorrectly translated into Spanish. (36)

Officers who encounter individuals who refuse to consent to a search in writing but who consent verbally should document their refusal to provide written consent. Additionally, as with any verbal consent to search, officers should carefully document exactly what the person said to the officers to indicate his or her consent. For example, in United States v. Boukater, (37) the U.S. Court of Appeals for the Fifth Circuit found that Boukater voluntarily consented to a search of his briefcase. After being advised of his constitutional rights and being told that he was free to leave, Boukater stated that he wanted to know what was going on. The agents advised Boukater that he was suspected of carrying counterfeit bills and was asked if he would consent to a search. Boukater then stated, "It looks like you got me. You can search my bags." After refusing to give written consent, he was asked if he was withdrawing his consent. At that point, one agent stated that Boukater said, "No, go ahead," and the other agent sta ted that he said, "Well, go ahead. You got me. It's in there." (38)

Form Content

There is no prescribed language that federal courts have held that must be placed into a consent to search form. A written consent to search may be handwritten (39) or be on a preprinted form. While there is no specific language that must be included in a written consent, the language that is used is extremely important. For example, there is a vast difference between a writing stating, "I have been asked to permit special agents. ..to search..." (40) and "it has been required of me that I give my consent to a search. ..." (41) The first of these statements indicates that the individual had a choice in whether to agree to a search, while the latter implies that there was none.

In most situations, officers use a preprinted form when obtaining a written consent. The officer will fill in the particular details on the form relating to the item or location to be searched and the individual consenting to the search. The use of a preprinted form may prevent an officer from inadvertently using potentially coercive language, but using such forms may lead to contested issues related to descriptions of items or property due to a failure to change boilerplate language. (42)

There are a number of standard items included in valid written consent to search forms. First, the form will indicate to whom the individual is giving consent to search, for example, Officer Smith of the Highway Patrol or agents of the Drug Enforcement Administration. (43) Second, the form will identify the item or location that the individual is consenting to be searched, for example, a 1986 blue Ford pickup truck, VA license 123 ABC. (44) Third, the form will state that the individual is voluntarily consenting to the search, for example, "I freely consent to this search" (45) or "I have given this authorization.. voluntarily and without threats, promises, pressures, or coercion of any kind." (46) Even though it is well settled that an individual does not have to be informed by an officer of the right to refuse to consent to a search, (47) because courts will consider this as a factor in determining the voluntariness of the consent, many forms include such a statement. (48)

Most of the challenges made to the language found in written consent forms concern the scope of the search (49) permitted by the language in the form. (50) For example, in the U.S. Court of Appeals for the Eleventh Circuit decision United States v. Kapperman, (51) officers stopped Cervantes' car based upon a reasonable suspicion that the passenger in his car was fugitive Kapperman. After determining that the passenger was Kapperman, the officers asked Cervantes for consent to search his car. Cervantes provided both oral and written consent to search. The police arrested Cervantes after finding cocaine in a suitcase in the trunk.

Appellant Kapperman argued that the consent form signed by Cervantes did not authorize opening the suitcase in the trunk. The consent form authorized officers to search the car and remove "whatever documents or items of property whatsoever, which they deem pertinent to the investigation." (52) The Kapperman court found that this language permitted searching within containers in the car, as it would be unlikely that papers and other items would be loosely strewn about the inside of a vehicle. The court also noted that the U.S. Court of Appeals for the Seventh Circuit rejected an identical challenge in United States v. Covello (53) and stated that in Covello

[tlhe Seventh Circuit rejected a challenge identical to the one presented here. Reviewing a district court opinion that held that an individual's consent to search his car did not include authorization to search luggage found inside of the car, the court reversed, noting that the interpretation of the signed consent form was crucial to the case. The form authorized the agents "to conduct a complete search" of the car, and permitted the searching agents to remove from the vehicle any property contained therein. Thus, the court concluded, the signed consent form authorized the questioned conduct. To bolster its decision, the court evaluated the circumstances surrounding the property owner's decision to consent, concluding that they were consistent with a complete search of the vehicle. (54)

Challenges by defendants to the language in standardized consent forms are usually unsuccessful. Nonetheless, officers should be extremely careful in making sure that the language in the form accurately describes what will be searched.

Conclusion

Obtaining an individual's consent to search in writing provides substantial evidence that an individual voluntarily consented. However, even though an individual consents to a search in writing, courts still will scrutinize all of the facts surrounding the signing of the consent form when deciding whether, under the totality of the circumstances, the consent was voluntary.

Officers who obtain written consent to search from an individual should document in detail the facts and circumstances under which the consent was given. Officers should pay particular attention to actions and statements made by both the officer and the individual when the form is signed. Similarly, in situations where an individual refuses to sign a written consent to search but verbally consents to a search, officers should document meticulously both what the officer said when asking for consent and what the individual said when giving consent.

Officers also should be familiar with the content of any preprinted consent forms used by their department and any departmental policies related to obtaining consent to search and the use of written consent to search forms. Consent to search forms should be reviewed by department counsel for legal sufficiency, and foreign language consent forms should be reviewed by certified or otherwise qualified interpreters prior to use. (55) Careful attention to the details associated with the use of written consent to search forms will help ensure that the use of the form provides valuable proof of voluntariness, instead of providing a source for defense counsel challenge.

Endnotes

(1.) U.S. CONST. Amend. IV.

(2.) Katz v. United States. 389 U.S. 347, 357 (1967).

(3.) Id.

(4.) 412 U.s. 218 (1973).

(5.) Bumper v. North Carolina, 391 U.5. 543 (1968).

(6.) United States v. Moreno, 280 F.3d 898, 901 (8th Cir. 2002).

(7.) United States v. Navarro, 90 F.3d 1245, 1257 (7th Cir. 1996).

(8.) See United States v. Mare, 1997 W.L. 129324 (D. Del. 1997).

(9.) United States v. Forbes. 181 F.3d 1, 8 (1st Cir. 1999).

(10.) United States v. Radrignez-Diaz, 161 F. Supp. 2d 627, 631 n.7 (D. Md. 2001).

(11.) 957 F.2d 499 (7th Cir. 1992).

(12.) Id. at 502.

(13.) For example, actions, such as signing a consent to search form, volunteering the possession of an apartment key, and showing officers how the key worked, are important. United States v. Genoa, 281 F.3d 305, 310 (1st Cir. 2002).

(14.) See J.W. Holcomb, "Consent Searches: Factors Courts Consider in Determining Voluntariness," FBI Law Enforcement Bulletin, May 2002, 25-32.

(15.) United States v. Ramirez. 963 F.2d 693, 704 (5th Cir. 1992); United States v. Twomey, 884 F.2d 46, 51(1st Cir. 1989).

(16.) See. e.g., United States v. Moreno. 280 F.3d 898, 900 (8th Cir. 2002); United States v. Soadeh,. 61 F.3d 510, 517 (7th Cir. 1995).

(17.) See, e.g., United States v. Rodriguez, 68 F. Supp. 2d 104 (D. Puerto Rico 1999).

(18.) See, e.g., United States v. Fryer, 974 F.2d 813, 820 (7th Cir. 1992).

(19.) See, e.g., United States v. Santuria, 29 F.2d 550, 558 (10th Cir. 1994), United States v. Fryer 974 F.2d 813, 820 (7th Cir. 1992).

(20.) See, e.g., United States v. Botehlo, 991 F.2d 189, 194 (5th Cir. 1993); United States v. Freyer 974 F.2d 813, 820 (7th Cir. 1992); United States v. Ramirez, 963 F.2d 693, 704 (5th Cir. 1992).

(21.) See, e.g.. United States v. Murihlo, 255 F.3d 1169, 1172 (9th Cir. 2001); United States v. Garza, 118 F.3d 278 (5th Cir. 1997); United States v. Ramirez, 963 F.2d 693, 704 (5th Cir. 1992); United States v. Tibbs, 49 F. Supp. 2d 47, 54 (D. Mass. 1999).

(22.) See, e.g.. United States v. Fryer, 974 F.2d 813, 820 (7th Cir. 1992).

(23.) See, e.g., United States v. Chaidez, 906 F.2d 377, 379 (8th Cir. 1990).

(24.) See, e.g., United States v. Iribe, 11 F.3d 1553, 1555 (10th Cir. 1993); United States v. Rodriguez. 68 F. Supp. 2d 104 (D. Puerto Rico 1999).

(25.) See, e.g., United States v. Perez, 37 F.3d 510, 515 (9th Cir. 1994); United States v. Jamarillo, 841 F. Supp. 490 (E.D.N.Y. 1994).

(26.) See, e.g., United States v. Twomey, 884 F.2d 46 (1st Cir. 1989).

(27.) See, e.g., United States v. Fryer, 974 F.2d 813, 820 (7th Cir. 1992).

(28.) See, e.g., United States v. Tibbs, 49 F. Supp. 2d 47, 54 (D. Mass. 1999).

(29.) 61 F.3d 1529 (11th Cir. 1995).

(30.) Id. at 1536.

(31.) 68 F. Supp. 2d 104 (D. Puerto Rico 1999).

(32.) Id. at 108.

(33.) Id. at 112.

(34.) See, e.g.. United States v. Pereira-Munoz, 59 F.3d 788 (8th Cir. 1995); United States v. Thompson, 876 F.2d 1381 (8th Cir. 1989).

(35.) See United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996)(citing United States v. Thompson. 876 F.2d 1381, 1384 (8th Cir. 1989)); United States v. Castillo, 866 F.2d 1071, 1081-82 (9th Cir. 1988); United States v. Boukater, 409 F.2d 537, 539 (5th Cir. 1969).

(36.) United States v. Garza, I 18 F.3d 278 (5th Cir. 1997).

(37.) 409 F.2d 537 (5th Cir. 1969).

(38.) Id. at 538.

(39.) See, e.g.. United States v. Twomey, 884 F.2d 46 (1st Cir. 1989).

(40.) United States v. Saadeh, 61 F.3d 510, 517 (7th Cir. 1995).

(41.) United States v. Jamarillo, 841 F. Supp. 490, 491 (E.D.N.Y. 1994).

(42.) See, e.g., United States v. Ramirez, 963 F.2d 693, 704 (5th Cir. 1992).

(43.) "See, e.g., United States v. States, 61 F.3d 510, 517 (7th Cir. 1995).

(44.) "See, e.g., United States v. Torres. 32 F.3d 225, 228 (7th Cir. 1994).

(45.) United States v. Saadeh, 61 F.3d 510, 517 (7th Cir. 1995).

(46.) United States v. Reeves, 6 F.3d 660, 661 (9th Cir. 1993).

(47.)"See United States v. Draytan, 536 U.S. 194 (2002).

(48.)"See, e.g., United States v. Torres, 32 F.3d 225 (7th Cir. 1994); United States v. Reeves, 6 F.3d 660 (9th Cir. 1993).

(49.) For additional information regarding the scope of a suspect's consent to search, see Florida v. Jimeno, 500 U.S. 248, 251 (1991), in which the Court stated that "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?"

(50.) See, e.g., United States v. Stribling, 94 F.3d 321 (7th Cir. 1996); United States v. Torres, 32 F.3d 225 (7th Cir. 1994); United States v. Reeves, 6 F.3d 660 (9th Cir. 1993); United States v. Covello, 657 F.2d 151 (7th Cir. 1981).

(51.) 764 F.2d 786 (11th Cir. 1985).

(52.) Id. at 794.

(53.) 657 F.2d 151 (7th Cir. 1981).

(54.) United States v. Kapperman, 764 F.2d 786, 794 (11th Cir. 1985).

(55.) See generally United States v Jamarillo, 841 F. Supp. 490 (E.D.N.Y. 1994); 28 U.S.C. [section] 1827 (2002).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Ms. Holcomb serves as the chief of the Legal Instruction Section, DEA Training Academy.
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Author:Holcomb, Jayme Walker
Publication:The FBI Law Enforcement Bulletin
Geographic Code:1USA
Date:Mar 1, 2003
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