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Questioning "Authority": Fourth Amendment Consent Searches

NCJ Number
FBI Law Enforcement Bulletin Volume: 77 Issue: 7 Dated: July 2008 Pages: 23-32
Carl A. Benoit J.D.
Date Published
July 2008
10 pages
This article examines police use of a resident's voluntary consent for officers to make a warrantless entry into the residence, with attention to the limitations placed on this authority.
The fourth amendment of the U.S. Constitution has been consistently interpreted by the U.S. Supreme Court to prohibit law enforcement officers from entering a residence without a valid warrant, subject to some exceptions. One exception is when an occupier of a residence gives voluntary consent for a police officer to enter the residence and conduct a search once inside. The fourth amendment imposes several requirements that must be satisfied for such an entry to be lawful. Three areas of concern are the characteristics of the consenting party, the actions/behavior of the police officers in gaining the consent to enter, and the environment of the questioning. Factors related to these concerns are the age, intelligence, and physical condition of the consenting party, whether or not the police used coercion to gain consent, and the length and location of the questioning that precedes the consent. Although not required under case law, as a matter of policy many departments require their officers to inform residents that they have the right to refuse officers entry when it is not authorized by a warrant. Any tenant of a residence can grant consent for an entry and search of a residence so long as there is no clearly defined common understanding that another tenant has superior rights over the residence, such as landlord over a renter. In the latter case, the landlord must give the voluntary consent. Also, if more than one tenant of the residence is present when officers seek consent, refusal by any one of the tenants is sufficient to prevent an officer's entry. 70 notes