Consent Searches in Florida

If the police asked to search you, your vehicle, or your home, they might discover evidence during that search. If so, your criminal defense attorney might file a motion to suppress that evidence if it violated the Fourth Amendment of the United States Constitution.

Although a search warrant might have been required, law enforcement can circumvent that requirement by alleging the person gave free and voluntary consent for the search. In those cases, the issues often revolve around whether the consent was free and voluntary.

In making that determination, the courts look at a variety of factors after looking at the “totality of the circumstances,” including:

• Would a reasonable person have felt free to end contact with the officer?
• How many officers were present during the encounter?
• What words did the officer or officers use when making the request?
• When and where did the request occur?
• Did the officer use coercive words or acts, misrepresentation, deceit, or trickery, such as claiming that the LEO has a lawful reason to conduct the search regardless of consent?
• Did the officer tell the person they could refuse to consent to the search?
• How many LEOs were present during the encounter, and where and what time did it occur?

One of the most important factors is whether the person knew they had a right to refuse a law enforcement officer’s request to search. Although that factor is significant, it is not always required.

In U.S. v. Mendenhall, 446 U.S. 544 (1980) the United States Supreme Court found: “[I]t is especially significant that the respondent was twice expressly told that she was free to decline to consent to the search, and only thereafter explicitly consented to it.”

In Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973), the U.S. Supreme Court rejected the argument that “proof of knowledge of the right to refuse consent is a necessary prerequisite to demonstrating a ‘voluntary’ consent.” Instead, the court found: “[v]oluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” Id.

This article was last updated on Tuesday, June 25, 2024.