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Obtaining Written Consent to Search

NCJ Number
FBI Law Enforcement Bulletin Volume: 72 Issue: 3 Dated: March 2003 Pages: 26-32
Jayme Walker Holcomb J.D.
Date Published
March 2003
7 pages
This article reviews the issues surrounding how to lawfully obtain a written consent to search from an individual.
Absent a lawfully obtained search warrant, law enforcement officers may search an individual and his or her property by obtaining either a verbal or written consent to search by the individual. However, there are strict guidelines involved in obtaining valid voluntary consents to search. This article focuses specifically on obtaining a written voluntary consent to search from an individual, as this is the preferred method of obtaining voluntary consent absent a court ordered search warrant. The main issues involved in securing voluntary consent to search are explored through the use of past cases in which such voluntary consent was questioned in court. For example, in the case United States v. Duran the defendant signed a consent to search her residence after marijuana, cocaine, and a large amount of money were found on her person. The defendant argued that because it was her first arrest, the defendant did not understand that she could refuse the search and that anything found during the search could be used against her in a court of law. The argument was rejected because the U.S. Supreme Court found that the written consent to search form contained such warnings. As such, the author notes that although a written consent to search is not necessary because a verbal consent to search may be given, the use of written consent forms is preferable because it more clearly shows a court that consent was freely given with an understanding that consent to search may be withheld by the individual. Other cases are offered that highlight other issues involved in obtaining a voluntary consent to search, issues such as language barriers and incorrect instructions provided to the individual in order to obtain a voluntary consent to search. In conclusion, the author notes that even when voluntary written consent to search is given, law enforcement officers should pay close attention to language used in the consent form and verbal instructions that are given because a court will carefully scrutinize whether the consent was, in fact, fully voluntary and whether the individual giving consent fully understood their rights involving providing such consent. 39 Endnotes