CONSENT SEARCH

When an individual consents to a search, he effectively waives his rights under the fourth amendment and makes it unnecessary for the police to obtain a search warrant. In determining the validity of such a consent, the trial court must determine whether the consent was voluntary. The consent of a person illegally held is not considered voluntary. However, an explicit warning about one's constitutional rights, which miranda v. arizona (1966) made mandatory for custodial interrogation, is not a condition for effective consent to a search, under the decision in schneckloth v. bustamonte (1973).

Consent must obviously be obtained from a person entitled to grant it. Not ownership of the premises but the right to occupy and use them to the exclusion of others is the decisive criterion. Thus, the consent of a landlord to search premises let to others is worthless. The consenting party controls the terms of the consent: it may be as broad or as narrow as he wishes to make it, allowing a search of an entire dwelling or merely of one small item.

For a consent by another person to be valid as against a defendant, it must be shown that the consenting party possessed common authority in the place or things searched. Anyone with joint access or control of the premises may consent to a search.

Jacob W. Landynski
(1986)

Bibliography

La Fave, Wayne R. 1978 Search and Seizure: A Treatise on the Fourth Amendment. Vol. 2:610–774. St. Paul, Minn.: West Publishing Co.