Consent Search

[6233108]

We have consent to search forms that advise the person requested of their specific Constitutional rights. I have read that having forms available limits your ability to explain why you did not use the form as opposed to getting verbal (unsigned) consent to search. The young bucks feel that giving people a form that advises them extensively of their Constitutional rights will cause people to NOT give consent when they feel if you just asked them " Will you give me consent to search your ______"? My feeling is that people are to be advised of the specific Constitutional rights available to them to allow them to make an informed decision about the form they are about to sign and the rights they are giving up. My personal feeling is a consent search is only used when you do not have specific probable cause to search, why else would you use it. If you have a legal right to search then go ahead and search, if you do not, ask for consent but give the person the full picture of what the Constitution affords them in the way of rights. Also how do you prove verbal consent was voluntary and knowledgeable? If you use the form it is all there in Blk & Wht. Not to say a signed form will always make the search above the scrutiny of the courts.

[LeslieBScott]

The best thing about having a signed form is that the customer cannot later tell the judge that A) he was not advised of his right to refuse or B) that he never gave consent.

I almost lost a large case on that matter. The customer gave me consent to search his house. I do, and I find a large amount of evidence.

During the prelim hearing, the DB tries to tell the Judge that he never gave proper consent, and therefore all evidence should be thrown out. Luckily for me (and unbeknownst to me) I had sufficient PC to conduct a warrantless search, consent or no.

Happy ending, the guy got 12 years, and his two houseguests got 6 apiece.

[ProWriter]

The young bucks feel that giving people a form that advises them extensively of their Constitutional rights will cause people to NOT give consent when they feel if you just asked them " Will you give me consent to search your ______"?

It depends. In the real world, people only consent to a search because they DON'T fully understand (or believe) they can refuse without penalty and just be on their way. There's always a certain amount of "intimidation" involved, even if you don't purposely do anything to create that dynamic. How many people would EVER consent to a search if you asked like this: "Sir, you are completely free to leave right now if you wish to, and there is absolutely no penalty for refusing this request, but I would like your permission to search your vehicle even though it's not in your interest to let me do so, and only bad things could result from it, since you're already free to go right now if you prefer"?

The people who give consent probably fall into two main categories: those who genuinely have nothing to hide and psychologically want your "approval" or continued attention, and those who DO have something to hide but are afraid that refusing consent will alert you and make you even more suspicious. Nobody with anything to hide would ever give consent if they truly understood and fully believed that their refusal would result in your simply saying "OK, then have a nice day and please drive carefully."

People don't usually bother to READ what they sign in general, so the form doesn't really "inform" them of that much anyway. I see this all the time when someone is presented with a lengthy contract with clauses and sub clauses and a pen with instructions to "initial here, here, and here, and sign here" and they just DO it, exactly as instructed. I also notice the looks I get because I DO read things before signing and once a salesman actually said to me "Oh, you don't have to read all that...that's just all the legal stuff". I said "OK, then why don't we both just skip all this legal stuff and do this with a handshake?" It just scares people more to be asked to "sign" something than to agree verbally. When they refuse to sign a consent to search form, it's more likely just because they don't want to "sign" it than it is because they actually read it and learned from it that they're legally entitled to refuse without penalty and so forth.

Unless your procedures require you to ask by presenting the form, why don't you just obtain consent verbally first, as if there were no consent form, thank them for their cooperation, and then phrase the request in the past tense: "Thank you, I appreciate your cooperation, I just need your signature right here saying that you just gave me your permission"? Many people who might have refused to give written consent initially won't actually have the balls to REVOKE the verbal consent they already gave when you ask them to "just sign" what they already agreed to verbally.

[6233108]

[i]

Unless your procedures require you to ask by presenting the form, why don't you just obtain consent verbally first, as if there were no consent form, thank them for their cooperation, and then phrase the request in the past tense: "Thank you, I appreciate your cooperation, I just need your signature right here saying that you just gave me your permission"? Many people who might have refused to give written consent initially won't actually have the balls to REVOKE the verbal consent they already gave when you ask them to "just sign" what they already agreed to verbally. [/B]

I have read case law that if your agency has consent forms available and you fail to use the form it can get the search tossed on the basis that you did not provide the person the exact same information that is contained on the form. Also case law on the time you give the person to read the form, they are to be given a reasonable amount of time to digest the information on the form before they decide.

[ProWriter]

Yeah, I understand. I'm saying a person is psychologically more likely to give (formal/valid) consent after first giving (informal/invalid) verbal consent. From your perspective, there is no valid consent until they actually read and sign the form. But from THEIR perspective, they already "consented" when they agreed verbally. I'm not saying start the search after the veral consent or just point to the signature line without letting them read it, because that is subject to invalidation pursuant to the case law you described. I'm saying ask, get an "unofficial" yes, then get it in writing as required. It's similar to what they teach salespeople about gettng people saying "yes" to non-sales questions because people are less likely to say no after a few yeses, that's all. As I said, if people REALLY understood they were 100% free to leave after saying no, nobody with anything incriminating would EVER consent. They consent because they are afraid that saying no will make you angry or more suspicious. This is just an extension of that principle, because many people would be even more afraid that reversing their original "yes" will make you more suspicious or angry. As far as your case is concerned, you got your written consent, right?

[LiveWire03]

I have never understood why people, with drugs in their car give consent for police to search. Even people with nothing to hide consent to a serach. Now, if I get stopped and a officer asks to search my vehicle I wouldn't want to consent to it. Even though I know theres nothing illegal in my car, I just don't like the idea of somebody going through my stuff. However, in most cases if a person denys a search the officer will call for a K-9 to sniff around the vehicle in an effort to get PC. So, unless a person wants to wait for the K-9 to arrive and check the vehicle, I think a lot of times it would be easier to just consent to the search and be on your way.

[jarhead6073]

If an officer doesn't have PC to search my car, and I refuse to consent to a search, am I legally bound to wait for a K-9 to show up? If so..

If the officer does not have PC to search me, why would he have the authority to detain me? How long would I be obligated to wait for a K-9?

I think I heard in one of my classes that an officer can detain a citizen for these purposes for a "reasonable" ammount of time, but I can't remember under what specific circumstances, or how long "reasonable" is.

[retired]

Originally posted by jarhead6073
If an officer doesn't have PC to search my car, and I refuse to consent to a search, am I legally bound to wait for a K-9 to show up? If so..

If the officer does not have PC to search me, why would he have the authority to detain me? How long would I be obligated to wait for a K-9?

I think I heard in one of my classes that an officer can detain a citizen for these purposes for a "reasonable" ammount of time, but I can't remember under what specific circumstances, or how long "reasonable" is.


Stops for traffic violations may lead to a sniff conducted during "free time." Just as a sniff of luggage in a public place is not a Fourth Amendment search, the sniff of the exterior of a vehicle lawfully detained is not a search. In Romo v. Champion, the Tenth Circuit Court of Appeals ruled that "when the odor of narcotics escapes from the interior of a vehicle, society does not recognize a reasonable privacy interest in the public airspace containing the incriminating odor . . . . Where government officials have lawfully detained a vehicle, a dog's sniff is not a search within the meaning of the Fourth Amendment." Thus, as long as the vehicle is not detained beyond the time necessary to accomplish the purpose of the traffic stop, whether it be to issue a citation, await for a licensed driver, or simply give a warning, the exterior of the vehicle is free game for a sniff. The Tenth Circuit has held that no consent is required for a canine sniff, even absent any reasonable suspicion, if the vehicle is otherwise lawfully detained. United States v. Morales-Zamora. You may even ask the occupants to get out of the vehicle while the sniff is conducted.

The scope of the sniff is limited to the outside of the vehicle. "An agent may not unlawfully enter an area in order to conduct a dog search. . . . The warrantless entry of a car interior is unlawful unless these is probable cause to believe that it contains contraband." United States v. Sukiz-Grado. The court went on to note that the interior sniff of the car was supported by probable cause, because the dog had alerted immediately outside the rear driver's side door, indicating narcotics inside the car. Don't get ahead of yourself -- remember the warrant requirement, discussed below.

Detention of the vehicle beyond this brief time needed to issue a citation or warning requires reasonable suspicion of illegal activity. "Once the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to delay by police for further questioning." United States v. Walker. "Any further detention for questioning [not for issuing a citation] is beyond the scope of the Terry stop and therefore is illegal unless the officer has a reasonable suspicion of unlawful activity." United States v. Dewitt.

[jarhead6073]

Thanks for the info retired.

[6233108]

no dog round here, usually 20 minute wait for mutual aid dog.