Consent Flashcards
(14 cards)
Waiver
Free from coercion, as determined by the totality of circumstances.
Consent
Consent requires knowing, aware, and voluntariness, which is determined by whether government agents had overborne D’s will.
Factors in considered regarding consent
– Youth of the accused (Haley v. Ohio)
– Lack of education (Payne v. Arkansas)
– Low intelligence (Fikes v. Alabama)
– Lack of any advice to the accused of his constitutional rights (Davis v. North Carolina)
– Length of detention (Chambers v. Florida)
– Repeated and prolonged nature of the questioning (Ashcraft v. Tennessee)
– Use of physical punishment such as the deprivation of food or sleep (Reck v. Pate)
The police arrive at an apartment shared by 3 roommates to ask about some stolen goods. 2 of the 3 roommates invite the police in, but the third denies. Can the police enter, absent a search warrant?
Not a chance. The customary standard is that where one person in joint authority refuses consent, cops must honor that refusal (GA v. Randolf).
Consent searches are okay if…
- not coerced,
- reasonable for the person to consent,
- reasonable for cop to believe person consented, and
- person had actual authority to give consent.
Do government agents need to warn that you have the right to refuse to consent? What if you refuse?
There’s no requirement to warn (Robinett). However, refusal to consent does not give probable cause.
What limitations are placed on consent searches of a car?
During a consent search, cops can search everything in a car that they have reason to understand the consent to apply to within the car (Jimeno).
The police arrive at an apartment shared by 3 roommates to ask about some stolen goods. 2 of the 3 roommates invite the police in, but the third isn’t present. Can the police enter, absent a search warrant?
Yes. A third party with common authority over premises can consent to a search because one assumes the risk when providing this authority to a third party. While proof of common authority rests on the State (Matlock), the police can arrest based on probable cause and then get authority while the suspect isn’t present.
The police arrive at an apartment to ask about some stolen goods. The former roommate (who the police think is a current roommate) let the police in. Can the police enter, absent a search warrant?
Probably. By apparent authority, a third party that cops reasonably believed to have common authority (but doesn’t) over premises can consent.
The police arrive at an apartment to ask about some stolen goods. The apartment’s resident isn’t there, but guest (who the police know to be a guest) let the police in. Can the police enter, absent a search warrant?
No. A mere guest has no standing.
If you waive your Miranda rights, not knowing the consequences or the exact purpose of the questioning, is it a valid waiver?
It’s not necessary that a suspect know and understand every possible consequence of a waiver of 5th Amendment privilege, which guarantees one may not be compelled to be a witness against himself in any respect. Mere silence by law enforcement officials as to the subject matter of an interrogation is not “trickery” sufficient to invalidate a suspect’s waiver of Miranda rights. A valid waiver does not require that an individual be informed of all information “useful” in making his decision or all information that might affect his decision to confess (CO v. Spring).
If you waive, can you re-invoke Miranda? How? Can it still be waived again?
Any waiver, express or implied, may be contradicted by an invocation at any time. If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease. A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police (Berghuis).
Ways to legitimately resume questioning, post-Miranda invocation, while scrupulously honoring the right to an attorney (Edwards) or to remain silent (Mosley):
- Questioning for different crimes
- Questioning by a different police officer
- Questioning in a different station
- Questioning after an extended period without questioning, i.e. 2 weeks (Shatzer)
How may invoking Miranda can be revoked?
Invoking Miranda can be revoked if D
(1) knowingly, intelligently, and voluntarily
(2) reinitiates contact (Brewer).
