Determining Circumstances When Consent to Search Is Valid

, New York Law Journal


Judge Wilson

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter!—all his forces dare not cross the threshold of the ruined tenement!1

The British statesman, William Pitt the Elder made this comment in a speech given in March 1763. Shortly thereafter, the U.S. Constitution adopted this same sentiment as the law of our land.

Under the Fourth Amendment of our Constitution, the police cannot enter a private residence to make an arrest or conduct a search, without a warrant. Further, a search of the premises and the arrest of a person in his residence is only reasonable under three specific circumstances: the police possess a valid warrant; there are "exigent circumstances" justifying the warrantless entry, such as an emergency or the "hot pursuit" for a felony charge; or consent is given for the entry.2

This article will concentrate on the nature and validity of a person's consent to enter and search a premises.

Consent Must Be Voluntary

As the New York Court of Appeals held in People v. Hodge, "Consent is a valid substitute for probable cause."3 However, "consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice." Consent cannot be the result of duress or coercion, express or implied.4

In People v. Perez, the police responded to the scene of a fist fight, which occurred outside of an apartment building. A 40-year-old man, who appeared to have been assaulted, was challenging a group of young men to a fight. Those youths told the police that the man had pointed a gun at them, and they had assaulted him in self defense. The gun was apparently still inside the apartment building where the man had hidden it prior to the arrival of the police.5

One officer noticed a woman dressed in a robe outside the location who appeared "frantic…shaking and mumbling." After ascertaining that the woman lived with the 40-year-old man, according to the decision, the officer warned her "that if she did not allow the police to search her apartment, he would get trained police dogs to search the apartment, and the police would arrest her if they found a gun in the apartment." At this point, the woman consented to the search, and a gun was recovered.6

The court found that the woman's consent to search was involuntary, since the conduct of the police was unnecessarily coercive. The situation "engender[ed] an atmosphere of authority ordinarily contradictory of a capacity to exercise a free and unconstrained will." Thus, the gun recovered was suppressed.7

In People v. Lewis, agents of the ASPCA received an anonymous tip that the defendant was mistreating dogs. The agents went to the defendant's home, and asked him to bring the animals out of the home for an inspection. The owner complied, and several dogs were seized and removed to receive veterinary care. He was subsequently arrested for neglect and animal cruelty.8

The Appellate Term ruled that under these circumstances, consent was voluntarily given. Defendant testified that he was not threatened by the agents, and "fully cooperated with the special agent to the extent that he repeatedly went inside his house, came out and gave him each animal…there was no misrepresentation, deception or trickery on the special agent's part."9

Who Can Grant Consent

Consent need not be obtained from the owner of the property. In fact, the police are empowered to conduct the warrantless search of a location if they have the consent of "a party who possesses the requisite degree of authority and control" over the location to be searched.

In People v. Dean,10 the nephew of the owner of a rental property had authority over the property while his uncle, the owner, was away. It came to the nephew's attention that someone was using a cabin on the property without his uncle's permission or authority. The nephew called a state trooper, who found a person inside the cabin in an agitated state. After police arrested the defendant for criminal trespass, a search incident to the arrest revealed drugs and drug paraphernalia on both the defendant's person, and in the cabin.

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