Policy Text
TRAINING BULLETIN
Evaluation Coordinator: Training Section Commander
Automatic Revision Cycle: 3 Years
“Department Training Bulletins shall be used to advise members of current police techniques and
procedures and shall constitute official policy.” Index Number: I-Q
Alpha Index: Consent Searches Effective Date
13 Dec 11
CONSENT SEARCHES
Introduction
Law enforcement officers have a variety of methods available to enforce and prevent crime. One such method that is often overlooked is the consent search.
If an officer obtains valid consen t, the officer may conduct a sear ch without a warrant, probable
cause, exigent circumstances, or parole/probation conditions.
With valid consent, the officer is entitled to seize contraband and the fruits or instrumentalities of
a crime as well as any other item the officer reasonably believes will aid in a suspect’s
apprehension or conviction.
Consent to search not only applies to suspects, but also to victims who similarly retain a
reasonable expectation of privacy.
When seeking consent to search, the officer must explicitly ask the suspect or victim for their
consent and advise they have the right to refuse pursuant to DGO M-19.
Officers shall document in their respective reports that they explicitly asked the suspect/victim for
consent, state whether consent was implied or expr essed, and that they were advised they had the
right to refuse consent.
In addition to explicitly asking a suspect or victim consent to search, consent will be valid if all of the following apply:
• The consent is voluntary and a produ ct of the subject’s free will.
• It is not coerced by force, threats, tricks, promises, or the exertion of an officer’s authority.
• The person providing the consent has the authority or apparent authority to provide the
consent.
• The search does not exceed the scop e or limits of the consent given.
This Training Bulletin examin es each of these criteria.
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Consent Searches, Index Number I-Q
Consent is Voluntary
A person may give either express or implied consent.
Express consent is verbal consent given with words, such as “Yeah,” Go ahead,” or “Do what you
want.”
Implied consent is consent given through physical gestures or acts, such as pointing or waving.
Because a subject has the right to remain silent and refuse consent, silence in response to an
officer’s request for consent does not constitute implied consent. ( Pavao v. Pagay (9
th Cir. 2002)
307 F3 915, 919) Factors that may impair a subject’s decision making capability-such as medication, age, intox-
ication, and mental condition-are considered by the court, and the court may rule such factors
make a subject’s consent unknowing and less than voluntary. A suspect’s consent, for example,
was ruled involuntary when he was in critical condition and in pain in a hospital emergency room. (George (9th Cir. 1993) 987 F.2d 1428, 1431)
An Officer’s Display of Intimidating Conduct or Force can Affect the Validity of a Consent Search
By exhibiting force while seeking consent, an officer takes a risk that th e consent will be ruled
involuntary. The courts also consider whether weapons have b een drawn. In order for consent to
be valid, it must be uncontaminated by duress, intimidating conduct, or other pressure tactics,
whether direct or indirect. ( People v. Challoner (1982) 136 CA3 743,758)
An Officer’s Words can Affect the Validity of a Consent Search
The words an officer uses in seeking consent are often decisive in determining if consent is
voluntary.
An officer must avoid commanding a subject to perf orm an act that permits the officer’s search or
facilitates the officer’s access. Inst ead, an officer must ask the su bject for permission to perform
the search.
For example, an officer does not command a subject to “open the door.” In stead, the officer asks,
“Would you mind opening the door?” An officer does not command a subject to “open a car trunk.” Instead, the officer asks, “Would you mind if I looked in the trunk?”
If a subject aids an officer in a search by obtaining evidence or by opening a door, trunk, or purse,
it is more likely the consent will be ruled voluntary. An officer, however, must not command a person to perform these acts.
The court will ask if the officer made the subject f eel he or she had a choice or if the officer made
the subject feel he or she had to give consent. By asking for and receiving permission, the officer
obtains a valuable indication that the subject’s consent was voluntary.
While not mandatory, an officer obtaining a subj ect’s written waiver of Fourth Amendment rights
in order to establish consent can help shows that the consent was voluntary.
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13 Dec 11 ● Oakland Police Department
An Officer’s Misrepresentation can Affect the Validity of a Consent Search
An officer shall not misrepresent his/her identify or purpose for seeking consent. An officer may
not misrepresent his/her authority by stating he/she has a warrant when he/she does not. ( Bumper
v. North Carolina (USSC 1968) 391 US543, 550). Additionally, an officer may not state he/she
wants to enter for one reason and then enter for another. ( US v. Harrison (10C 2011) 639 F3
1273, 1280).
An undercover officer may legally misrepresent his/her identity and purpose for obtaining consent.
This only applies when the undercover officer enters a residence for the