Using the Infotrac access system, I located two articles regarding consent searches. The first article discuses the acquiring of consent by police officers by means of deception. The other sets guidelines for officers when attempting to obtain consent while keeping the voluntariness of the suspect in mind. The first article appeared in the FBI Law Enforcement Bulletin in August of 1996.
Kimberly A. Crawford discusses guidelines for officers to follow when obtaining consent for warrantless searches. She agrees that it is a valuable investigative tool, but officers must be mindful when deciding the degree of voluntariness of the consent given. When determining the voluntariness of a consent search, the courts use a "totality of the circumstances" test.
This test has concluded that the following actions do not necessarily render consent involuntary: 1) The failure to advise an individual of the right to refuse consent, 2) The fact that the officers had their weapons drawn and had handcuffed an individual prior to asking for consent, and 3) The obtaining of consent from a person under the influence of drugs. Although these situations do not automatically necessitate involuntariness, the courts do recognize these events when evaluating the role they play in the totality of the circumstances to determine the voluntariness of the actual consent. The author, as well as our class, used the Supreme Court case Illinois v. Rodriguez to personify this issue of consent searches. The argument that the pursuant did not have the right to suppress the rights of the arrested was the central issue. The case of Florida v.
Jimeno also arose when discussing consent. An officer had overheard Jimeno discussing a drug deal and he had then pulled him over for a traffic violation. After issuing the citation, the officer noted that he had reason to believe that Jimeno's vehicle contains drugs and asked if he could search it. Jimeno consented and the officer turned down a brown paper bag to find a kilo of cocaine. Jimeno, at the trial, moved to suppress the evidence on the basis that his consent did not cover the search of containers inside of the car. The court did not agree.
The second article also appeared in the FBI Law Enforcement Bulletin. John Gales Sauls published the article in January of 1994. He discusses that officers often times have to use deception and other covert techniques to gain access into a suspect's dwelling or place of business. According to the article, officers may enter stores or offices and other places open to the public in order to investigate without violating the Fourth Amendment. The author describes instances where officers went into public places to investigate with the freedom allowed to any citizen. The Supreme Court decided that store clerks and office managers did not have any reasonable expectation of privacy in areas of the store where the public was allowed to enter and conduct legal business.
The expectation that the possibly illegal nature of a product will not come to the attention of the authorities is not one that society is willing to accept as reasonable. The author describes several differing types of deception often used by police officers to gain entrance to a nonpublic area. The tactic in question and under debate is the technique called coercive deception. This is where an officer relies on coercion to enter a premise. One specific instance discussed is when an officer knocked on the door of a dwelling claiming to be with the gas company investigating a leak in the neighborhood. This is coercive because the occupant of the dwelling feels obligated to let the "gas man" in due to the severity of the denial of the request.
It is my opinion that the consent search is a powerful tool for the police to gain access without going through the hassles of obtaining a warrant, especially when probable cause isn't present. If an officer can gain access into a person's dwelling to investigate without getting a warrant first, I think it is in their interest. My problem with the idea of consent searches falls into the premise of voluntariness. I think officers should inform the occupant of their right to deny the request for admittance.
The occupant of the dwelling has full right to deny the officer's request, but often does not know it and can get burned by it later. I do not think this is one of those cases where policy should not "protect the stupid." It is a case where officers are commonly taking advantage of the shortcomings of others, especially minorities who may be less informed of their rights, and entering their houses and private property to conduct illegal searches of evidence that is later used to incriminate them in a court of law. Works Cited: 1. Crawford, Kimberly A. , "Consent Searches: Guidelines for Officers," FBI Law Enforcement Bulletin.
V 65 n 8 p (27) 6, August 1996. 2. Sauls, John Gales, "Obtaining Consent to Enter by Deception," FBI Law Enforcement Bulletin. V 63 n 1 p (28) 5, January 1994..