“May I search your trunk?” “Would it be okay if I searched your car?” “May I look around?” “I need you to step out of the car so that I… do you mind I look around? I just want to make sure that you don’t have anything you’re not supposed to have. Would that be okay?” These are all requests to search and require consent to make the warrantless search constitutional.
Consent is commonly defined as “to permit, to approve, or to agree.”[i] In terms of the Fourth Amendment, consent has been understood to be an exception to the warrant requirement. Consent allows the police officers to search a person or place without a warrant. The key to making this extra-judicial, warrantless search constitutional is that the suspect has to approve of the search.[ii]
The United States Supreme Court in Schneckloth v. Bustamonte[iii] defined how the lower courts would analyze consent exceptions to warrantless searches. The Court explained:
It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ (Internal citations omitted) It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. (Internal citations omitted) The constitutional question in the present case concerns the definition of ‘consent’ in this Fourth and Fourteenth Amendment context.
In Florida, when the prosecution asserts consent as a justification for a warrantless search, the prosecution bears the heavy burden of showing that the consent was given voluntarily and not merely acquiescence to police authority. “Acquiescence to police authority” is a legal concept that means that the person confronted with the request to search merely capitulated and agreed to the search because law enforcement coercion.
The established test to determine whether consent was voluntary (versus involuntary and, therefore, acquiescence to police authority) is for the court to consider the “totality of the circumstances.”[iv] Analyzing the actions of the accused from the reasonable person standard, the trial courts are to look at three factors to determine whether the consent to search was voluntary: (1) the time and place of the encounter, (2) the number of officers present, and (3) the officers’ words and actions; a court analyzes these factors from the perspective of a reasonable person, untrained in the law, deciding whether he or she is free to end the encounter.[v]
Many people simply do not understand that in America they have the constitutional right to terminate a citizen encounter, go about their business, and refuse to allow law enforcement to search their automobile, bags, or person. It is only when the officer has a reasonable suspicion of criminal activity can an officer detain a person; it is only when the officer has probable cause to believe that a crime is, has, or is about to occur, can the officer arrest and/or search a person. The standards of suspicion are different, and the differences are important to prosecutors, defense attorneys, and judges. On the other hand, most people are not lawyers and have no idea (nor should they) understanding the different levels of suspicion (e.g., a hunch, reasonable suspicion, or probable cause). Most people simply cannot fathom simply ignoring the officer’s request- so they stay and obey.
And let’s face it – when confronted with a law enforcement officer in the above situation – it becomes nearly impossible for the average citizen to resist the officer’s requests to search. People become scared of being arrested and believe that if they comply with the officer’s request that that will somehow inoculate them from an arrest. Please understand, if the officer believes (rightly or wrongly) that someone has committed a crime, the person will most likely be arrested. It is not up for a “street” debate; the matter should be litigated, however, in court.
Over the years, the problem with the consent analysis has become obvious – – – most citizens believe that they are required to cooperate with law enforcement. Appellate Judge Casanueva (Second District), in Smith v. State,[vi] outlined the concern:
We fear that similar situations will arise in the future, perhaps because most citizens hold it to be their duty to cooperate with law enforcement, a belief with which we join. But once engaged in the process, few citizens know the boundaries that law enforcement may not legally exceed or the means to stop conduct they may perceive to be unduly intrusive. The Supreme Court of the United States has held that police officers are not required to inform citizens of their right to refuse consent to a search. (citation omitted). Thus, ignorance of one’s rights may lead to a denial of those rights. To avoid similar occurrences and to define rules for determining “whether an invasion of privacy is justified in the interest of law enforcement,” (citation omitted) we would suggest that our supreme court consider adopting a bright line rule that requires clear verbal consent before the search of any body orifice. (footnote omitted) The rule, to insure an individual’s right to privacy, should impose a duty upon law enforcement to inform a person of the right to refuse consent as well as the concomitant right to withdraw previously given consent.
In the same opinion,[vii] Chief Judge Altenbernd (Second District) in his concurring opinion expressed equal concern and stated:
I realize that the case law is beginning to develop distinctions based upon an officer’s rhetoric. (citation omitted). I am not entirely convinced that a reasonable person stopped by an officer believes that he is free to leave if the officer says, “May I look in your mouth?” but has a different understanding if the officer says, “Open your mouth.” Neither am I convinced that a reasonable person fully appreciates the proper scope of a search during an encounter depending upon whether the officer says “search” or “look around” or “look into.” All people, including police officers, communicate the level of their authority to control others both verbally and non-verbally. We expect, and even demand, that our police officers will be polite and courteous. They are trained to assert their authority while remaining courteous. Beginning in pre-school, citizens are taught to respect the police and to cooperate with them. As a result, a polite and courteous request to search from a uniformed officer, emerging from a police car while armed with a gun and nightstick, conveys a completely different degree of authority, for instance, than a brusk order from an ice cream vendor to buy a Good Humor bar. Given that we must examine the question of an officer’s show of authority and a citizen’s consent from the perspective of a reasonable citizen, and given that the State has the burden of proving the citizen’s consent to the search, I do not believe the State met its burden in this case.
Many persons stopped and searched by law enforcement complain that the police did not give them a real opportunity to “consent.” They complain that they felt pressured or forced into consenting. It is a common theme amongst persons arrested on narcotics or contraband charges.
Over the past couple of years via high profile court cases, the media has been able to shine a massive spotlight on this problem. The solution – body cameras. The proper use of body cameras on police officers has significantly shown that police behave more appropriately in terms of stopping and searching individuals.[viii] [ix] [x]
As my old football coach used to use when we watched taped game films to account for our performances in the previous game, “the eye in the sky don’t lie.” Which means there is no manipulating, spinning, or wiggling out of what we were seeing on the film. We either made the block, or we did not. We lined up correctly, or we did not. We made the play, or we did not. There were no “foggy memories,” or “I remember it differently…” from what the tape showed. It was what it was.
The same holds true for a properly worn and used body camera. The recording either corroborates what the officer says, or it corroborates what the accused says. The recording is objective, has no agenda, and is infallible in terms of truth-telling. It is what it is.
And in terms of consent and the “totality of the circumstances,” it is the opinion of this author that as law enforcement body cameras become more and more prevalent, I believe that consent issues will become clearer for the trial and appellate courts to pin down because it will not be dependent on the credibility of the law enforcement officer versus the accused (which is always a tough situation with most judges).
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
If you or your family member has been stopped, searched, and arrested for contraband, and the police claim you or your family member consented to the search, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter. As a three-time, board-certified criminal defense attorney (in both State and federal court), I have seen and litigated a lot of warrantless consent searches. While I cannot say that I won them all at the trial level, I have had some decent success on getting some of these matters suppressed.
The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.
If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela)
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No. 20-014
[i] https://www.dictionary.com/browse/consent?s=t
[ii] A common tactic employed by certain defendants is to apply some sort of chopped logic to the matter and concoct a strange gambit. The ploy goes something like this: the suspect agrees to the search with the officers, claiming, “I have nothing to hide” (when they, in fact, had drugs on their person). The ruse never works with law enforcement who are going to search one way or another. The best policy is to stand fast and deny the request to search. The officers may threaten to arrest you, or call for a canine to sniff you, or arrest you anyways for something else. The best policy (and it may be very, very difficult, is to not consent to search and request an attorney).
[iii] 412 U.S. 218, 221, 93 S.Ct. 2401, 36 L.Ed.2d 854 (1973)
[iv] See Schneckloth, supra.
[v] See Hardin v. State, 18 So.3d 1246 (Fla. 2d DCA 2009).
[vi] See Smith, 753 So.2d 713, 716 (Fla. 2d DCA 2000).
[vii] See Smith, 753 So.2d 713, 717 (Fla. 2d DCA 2000).
[viii] https://www.nydailynews.com/new-york/ny-nypd-body-cameras-20201130-4s36ea46lfdwnl73xm2scmydji-story.html
[ix] https://www.nytimes.com/2020/11/30/nyregion/nypd-body-cameras.html
[x] https://www.cnn.com/2020/12/02/us/nypd-body-cameras-report/index.html