If the party consents, the police can conduct a full search even if they do not have a warrant or probable cause.

Voluntary Choice

Schneckloth v. Bustamonte

412 U.S. 218 (1973).

Bustamonte was convicted of possessing checks with the intent to defraud. He appeals.


Was the consensual search voluntary?


The police may search without a warrant if they obtain the voluntary (not coerced or duress as established by the totality of the circumstances) consent of the subject. There is no need to inform the subject they have the right to deny a search. The prosecution has the burden of proof to show that there was valid consent.

Some of the factors to determine whether coercion was there based on the totality of the circumstances

  • Age, intellectual capacity, or sophistication.
  • Whether the subject has the knowledge that they can deny consent (although not determinative).

The right to deny consent cannot be waived because this is different from a trial; this is an informal interaction.


The search here was consensual.


The officers stopped a vehicle in the early morning hours for a missing headlight. When only one of the subjects could produce a drivers license, the officer asked the occupants, six in total, to exit the vehicle. They did so. The officer then asked if he could search the car, “yes.” Again, the officers asked if they could open the trunk and the subject opened the trunk. There, the officers found a couple of checks from the local bank which ultimately was used as evidence at trial.


There is a need to balance the interest of conducting a search and avoiding coercion. One option is to inform the subject they do not need to consent to a search. The Court disagrees with this option because it would remove the informality of a consensual search. However, consent does not waive one’s rights to the Fourth Amendment protections.

However, the dissent argues the subject should have the knowledge of the right to deny consent. This is because they want to avoid the police from taking advantage of those who do not know.

Ohio v. Robinette

653 N.E.2d 695 (Ohio 1995).

Here, the subject gave consent to search their vehicle after they were given a warning during a traffic stop. Was free will overborne at the time the request for consent was made? There is no need to inform the subject that the original stop was over before asking for consent. About 15 states (including Iowa) say that the test is more restrictive (need to let them know). See Pals.

People v. Gomez

838 N.E.2d 1271 (N.Y.2005).

The police obtained consent from the subjects during a traffic stop. During the search, they found a suspicious hidden compartment, and opened it up. Now, the question is whether the police went beyond the scope of consent. Test: What would a reasonable person have understood by the exchange with the officer? See Florida v. Jimeno, 500 U.S. 248 (1991). In this case, the police exceeded the scope because their impaired the structural integrity of the vehicle and left it in a “materially different condition. Additionally, the search should be conducted as soon as reasonably possible.

Third-Party Consent

Consent may also be provided by a third-party if the third party (1) gives the consent voluntarily and (2) has the actual or apparent authority (shown by shared control of the property subject to the search) to consent.

Commonwealth v. Porter P.

923 N.E.2d 36 (Mass. 2010).


Whether the shelter director had the actual or apparent authority to provide consent to a search.


Actual authority: A third party with common authority over an area may consent to a search. See Matlock. This only applies if (1) co-inhabitant, or (2) a contractual provision giving the landlord the authority to consent.

Apparent Authority: Valid search if the police mistakenly but reasonably believe the third party can consent. See Rodriguez. The mistake must be about the facts, not the law.


Here, there was no actual or apparent authority.


Porter P. a juvenile, along with his mother moved into a transitional shelter. There were several rules where residents were not allowed to have drugs or weapons. Additionally, shelter officials had the ability to go into the property to conduct health and safety inspections and to do so with “service professionals.” The police could also be called to help facilitate these rules.


First, there was no actual authority because the shelter director is not a co-inhabitant and the contractual provisions only allow the director to call the police but not expressly allow the police to search.

Second, there is no apparent authority because the officers misunderstood the law, rather than her position.

However, the dissent argues that this is poor policy, asking the staff to engage in self-help, which can be dangerous. Additionally, the parties were already in a position where the officers might as well conduct the search themselves.

In re Welfare of D.A.G.

474 N.W.2d 419 (Minn. 1991).

Dale and Thomas are roommates. When they had friends over, the friends brought illegal drugs and Thomas objected. When there was no change, Thomas went to the police and gave the consent to a search. The police did come, did not knock and announce, conducted a search and found the drugs.

Here, there was actual authority because Thomas was a co-tenant.

However, when co-tenants are both present and providing competing consent (one consents while the other does not), the police are not allowed to search. See Randolph, 547 U.S. 103 (2006).

Here, Dale was not given the opportunity to avoid consent because the police came without knocking and announcing. As such, the search was not valid.

State v. Schwarz

136 P.3d 989 (Mont. 2006).

The officers came to the door looking for the defendant, but the defendant was not there. Only the child was present (either 13 or 14) and allowed the officers to enter and search the home. Here, the search is invalid because the child did not have actual authority (did not have dominion over the home because of her age). Thus, the search was invalid.

Additional Note: In most states, a parent can consent to  the entry of a child’s room, even if the child is an adult.

State v. Maristany

627 A.2d 1066 (N.J. 1993).

The officers conducted a stop and removed and separated the occupants. When the occupants provided inconsistant stories, the officers asked the driver if he could search the trunk then again to search the bags in the trunk (consent was provided to both). After drugs were found, the driver said that the bags were not his.

Thus, the driver did not have actual authority. However, there was actual authority because the police only need to establish only a reasonable effort to establish the necessary facts.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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