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Consent Searches: Factors Courts Consider in Determining Voluntariness

NCJ Number
FBI Law Enforcement Bulletin Volume: 71 Issue: 5 Dated: May 2002 Pages: 25-32
Jayme Walker Holcomb
Date Published
May 2002
8 pages
This article provides an overview of the types of factors courts have considered in conducting their totality of circumstances analysis into whether a person has voluntarily consented to a search.
The Fourth Amendment of the Constitution preserves the right of people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures. Even a consensual search still requires the Fourth Amendment reasonableness. In order to determine whether a consent to search is voluntary, courts must examine the totality of the circumstances surrounding the consent. This article provides a broad overview of the types of factors courts have considered as part of this determination. The courts consider all the facts surrounding a consent to search. There are several factors surrounding an individual’s consent. Those relevant are placed into four broad categories: the characteristics of the subject giving consent, the environment in which the consent is given, the actions taken or statements made by the subject giving consent, and the actions taken or statements made by law enforcement officers during the course of asking for consent to search. Law enforcement officers need to be aware of the factors courts will consider when determining voluntariness of the consent, the government’s burden of proving voluntariness, and the reasonableness requirement of the Fourth Amendment when seeking consent to conduct a search.