Search Warrant Exceptions: (6) Consent

The sixth, and most frustrating exception for defense attorneys, is consent. It is a rare occasion that “go ahead” is the correct answer when a police officer asks to search your property!

Under the consent exception to the search warrant requirement, police can search almost anything so long as they have reasonable suspicion and your permission. Consent doesn’t have to be explicit, but it usually is. Police have been burned on this before, so oftentimes they will use a form to help the subject understand the scope of their consent and to get that consent in writing.

A consent search must be limited in scope. The police can only search the items for which they have lawful consent. The scope of consent depends on the specific circumstances of each situation. Furthermore, police are not required to tell people about their right to refuse consent, but the consent must be given freely and voluntarily. 

A skilled attorney will analyze the totality of the circumstances in deciding whether or not it is appropriate to challenge the evidence obtained as a result of a consent search. Police cannot use misrepresentation, or the threat of a search warrant to get consent. Also, an attorney may consider whether the scope of consent was impermissibly expanded and whether his/her client was provided the appropriate opportunity to revoke consent.

An attorney reviewing the specific facts of his client’s case benefits greatly from understanding how police officers think and act as part of criminal investigations. This is a great example of how my prior experience as a police officer helps me effectively represent my clients as a defense attorney.