CP Ch. 15- Consent Flashcards
1
Q
Consent entries and searches are allowed, because citizens may (blank) choose to give up their privacy.
A
Voluntarily.
2
Q
The three essential components of a valid consent search are: (3)
A
- Voluntary & Clearly communicated
- Lawful presence & proper scope
- Authority
Note: The person who consents MUST control the property entered OR searched.
3
Q
May consent be the result of expressed or implied law enforcement direction?
A
No.
Ex. Defendant stepped back and put his hands on his head in response to “FBI open the door!”. This was not consent to enter.
4
Q
To determine whether the defendant voluntarily consented, courts examine the “totality of circumstances”. In other words, the judge will assess the following questions: (2)
A
How did the police behave?
What were the characteristics of the defendant?
5
Q
Who has the burden of proving consent was voluntary? And what is the standard of proof?
A
- The police and the prosecutor have the burden
- Preponderance of the evidence (means the same as PC)
6
Q
Consent may not follow (blank) or (blank).
A
Force or show of force.
*Officers must not resort to intimidation.
7
Q
May a person give valid consent if, when doing so, he is afraid of another person such as an accomplice?
A
Yes. However, it would not be valid if the person consents out of fear of the police (ex. intimidation tactics).
8
Q
Is written consent required to search.
A
NO. But it is persuasive.
*if officers do rely on written permission, it must be acquired BEFORE the search begins.
9
Q
Failing to use a consent form, when an officer has one available, may indicate:
A
A lack of voluntariness.
10
Q
When asking for consent to search or enter, must police also warn the individual of his right to refuse?
A
No.
“The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning…”
11
Q
While not required, advising a suspect that he may refuse increases the likelihood that:
A
Consent is voluntary.
12
Q
True or false:
Officers may suggest that a citizens failure to consent will result in adverse legal or family consequences.
A
FALSE. These types of threats force consent.
13
Q
Valid or Invalid?
Officers told the defendant’s girlfriend that, if she did not consent to a search, they would have child services remove her sleeping 6 year old.
A
Invalid.
The threat to take her child forced the girlfriend’s consent.
14
Q
Valid or Invalid?
While waiting for a consent form to arrive, an officer asked the defendant’s girlfriend about her 4 year old son and mentioned reporting to DCF.
A
Valid.
This was not coercive because the officer was a mandated reporter, and his request for information was legitimate and not overbearing under the circumstances.
15
Q
Valid or Invalid?
Officer told the defendant that, if police searched pursuant to a warrant, they would damage the apartment. But, if the defendant consented to a search, they would “show a little courtesy”.
A
Invalid.
Appeals court strongly criticized this type of pressure.
16
Q
Consent is voluntary even if it follows an officer’s announced intention to apply for a search warrant. This tactic is acceptable, ONLY if:
A
Police already have information that amounts to Probable Cause.
17
Q
Consent is voluntary even if it follows an officer’s announced intention to apply for a search warrant. Officers must say they will (blank), and not imply that they have the power to issue one themselves.
A
SEEK a warrant.
18
Q
Police may promise not to charge a suspect in order to get consent to search, as long as:
A
They keep their promise.
19
Q
Are police authorized to promise a suspect that they will not charge them in order to get consent?
A
Yes. As long as they keep their promise.
Ex. police promised defendant they would not charge him with drug possession if he let them search his bedroom drawer. They did not charge him with drug poss, just with poss of ammo they found in the drawer. This was proper.
20
Q
Are education, emotional makeup, and intoxication relevant factors when considering whether consent is valid?
A
Yes.
Ex. consent of drunk 17 year old will receive closer scrutiny than 40 year old sober physician. Given the disparity in age, education, and mental awareness, the physician is much less susceptible to police intimidation.
21
Q
True or false:
Prior cooperation often indicates voluntary consent.
A
True.
22
Q
Is consent voluntary when the suspect authorizes a search in order to prove his own innocence?
A
Yes.
Ex. Suspect motivated to clear his name of murder allegations authorized a search of his suitcase, but insisted officers agreed not to charge him if they found drugs in the suitcase.
23
Q
A suspect’s assertive reaction to police helps show:
A
Voluntary consent.
24
Q
Commenting on one’s own right to refuse a search indicates:
A
Voluntary consent.
25
Is it possible for police to obtain voluntary consent from a suspect who is already in police custody?
Yes. it is more difficult, but still possible.
Ex. Suspect voluntarily accompanied police to station for interview. He waived his Miranda rights. Following the interview, they asked if he would consent to a search of his apartment. He agreed, signed a consent form, and was arrested. Detectives, accompanied by the defendant, went to the department and seized additional evidence. The court was satisfied that the defendants consent was voluntary throughout the process.
26
Consent- Clear communication-
While the suspect may (blank) or (blank) consent, his communication to the police must be (blank) and (blank)
explicitly or implicitly;
clear and unambiguous.
27
May consent be nonverbal?
Yes.
Such as a nonverbal invitation in response to an investigative question. (retrieving bloody pants from a back bedroom when asked if she knew where suspects clothing was)
* However, officers may not take advantage of a suspects ambiguous comments or gestures.
28
Valid or invalid?
Officer called out to McGrath, who he knew from a previous arrest for drug possession. Mcgrath responded "I'm clean this time" and spread his hands out, while walking away. Officer stepped in and patted him down. He found a vial of amphetamines.
Invalid.
Mcgrath's comment, while walking away, was not an invitation.
29
For a physical gesture to indicate consent, it must be in response to either: (2)
1. An explicit request to enter. Ex. "Hi Rose, Springfield police, may we come in?" or;
2. An explicit statement about the police purpose. Ex. "Rose, we need to speak with Danny about an incident tonight. where is he now?"
Her pointing to the kitchen, where Danny is seated, now becomes a clear invitation to enter.
30
Voluntary consent may come from a non- English speaker, provided the request and response were:
Properly translated.
Note: Be sure to document who helped translate.
31
Like plain view, consent is concerned with the suspect's expectation of privacy. With plain view, the police have a valid reason to intrude on the suspect's privacy when they see the evidence. With consent, it is the (blank) that puts Officers in a position to find evidence.
Suspect's permission
32
Does an unlawful entry invalidate later consent?
Yes.
33
May police make fraudulent claims of public safety authority, as a ruse, to enter a home?
No. It is coercive, so it invalidates consent.
Ex. Police posed as gas company employees and falsely warned of a possible gas leak to get into apartment.
-Permitting the police to use this type of ruse jeopardizes public safety because it might prompt citizens to bar officials seeking to protect from a real emergency.
34
Fraudulent claims (FBI agents claiming Washington DC was receiving virus from defendants computer- in order to search for child porn, Officer's claiming report of domestic disturbance in order to remove and photograph suspect in the hallway) of public safety authority is (blank), so it (blank)
Coercive, so it invalidates consent.
35
Consent to enter is NOT consent to search. Permission to enter building, apartment, or other area-by itself- does not give the officer authority to search. Specific (blank) must be obtain (blank)
Specific consent to search must be obtain separately.
36
May police enter a suspect's home secretly? (Undercover officer enters through an unlocked back door to buy drugs from the defendant)
Yes. Because they are not taking advantage of their police authority. Officer entered just like defendant's other customers.
37
Scope of Consent: The search must happen when:
When consent is given. If the search is delayed, consent becomes stale.
38
May a person granting consent place limits on the police, such as consent being conditioned on the suspect being present?
Yes.
39
Unless explicitly limited, the scope of the consent is what is:
Reasonable.
40
Consent to search pocket for ID. Because a pocket is a cramped space, consent to search includes removing items that could be the object of the search, or: (1)
Objects that obstruct access to the other items.
Ex. officer found drugs, and then ID in front pocket. If it had been the other way around, he would have had to end the search once he found the ID.
41
Reasonable scope?
Based on a report of domestic violence, Thomas was arrested. Thomas asked officers to lock the door on the way out. One officer stayed in the house to look from the key. He looked in the kitchen and living room, then the bedroom. He opened a drawer in the nightstand and found a gun.
Unreasonable. Beyond the scope of Thomas's consent to search.
Reasonable to check the front door, a hall table. or a hook near the entrance- searching the bedroom was unreasonable.
The presence of two officers was also a factor. One officer could have radioed the other to learn location of key from Thomas.
42
Once consent is given, can it be withdrawn? If so, when?
At any time.
*Once withdrawn the search must stop unless justified on some other legal ground- ex. if PC found and then consent withdrawn, secure scene get search warrant
43
Do police need to obtain a separate search warrant to test evidence lawfully obtained during a consent search?
No.
44
Person in sole possession- When they wish to have permission to search a particular person, police must receive consent from:
That person only.
45
If property to be search is owned or used exclusively by one person, then (blank) may consent.
Only that person may consent.
46
Third party: Joint Access & Control- Where two or more persons have equal rights to use the property, (blank) may consent to a search.
Each person may consent to a search.
Note: this is an important concept for police because the voluntary consent of ANY joint possessor is valid.
47
Valid or Invalid consent:
Defendant's wife gave consent to search a separate building on their farm, which her husband supposedly used as a gym. While the wife did not enter the building, she still had a key to go inside.
Valid. The test is joint ACCESS and CONTROL, not actual use.
"One can have access to a building or a room but choose not to enter"
48
True or false:
Absent exigent circumstances, when one occupant objects and the other consents and the other objects, police lack consent.
True.
If a physically present occupant refuses to permit entry, then any warrantless entry and search is invalid against him.
49
Absent exigent circumstances, when one occupant objects and the other consents and the other objects, police lack consent. At the same time, one co-tenant's refusal to consent does not prevent: (3)
Does not prevent:
1. Another co-tenant from delivering evidence to police outside of the home; or
2. Another co-tenant telling an officer what he knows(Which police can use as basis for securing premises and getting a warrant); or
3. A police entry based on exigent circumstances.
50
Only a co-tenant who is (Blank and blank) can prevent police entry and/or search.
Present and objects.
51
Police respond to domestic, defendant says "You dont have any right to come in here!". He is arrested. An hour later, police return and are granted consent from the victim, a co-tenant in the apartment. Police find evidence linking defendant to a crime that had occurred just prior. Is this a valid consent search, despite the defendant's earlier objection to allow entry/search of the apartment?
Yes, it is valid. Must be PRESENT and object.
-Defendant under arrest was "in the same shoes as any occupant who is absent for any other reason."
52
Consent- Married and unmarried partners:
True or false:
In the absence of some information which indicates exclusive use- such as inability to produce the key to a locked cabinet- officer may assume that a spouse or unmarried partner has the authority to consent.
True.
Note: Good relations are NOT required. "The nature of the relationship is irrelevant. The issue is whether the party has joint access and control."
53
Valid or invalid:
Noonan's girlfriend occupied the apartment with him; she had total access except for a bureau that was reserved for Noonan alone; She could lawfully consent to a search of the entire apartment, including the bureau.
Invalid (for the bureau). She could lawfully consent to a search of all other portions of the apartment, except for the bureau.
54
May police assume that adult family members can allow them to take a look around?
Yes. Adult family members typically have the "run of the of the house".
55
Grandfather told police that the defendant's room was unlocked and open, that he did not contribute rent or food, and that they could enter his room at will. Did the grandparents have lawful authority to consent to the search of the defendant's bedroom in their house?
Yes. Legitimate access to the room.
56
Two family home. Parents lived in the upstairs apartment, adult daughter lived in the downstairs apartment. Mother gave consent to police to search daughters apartment. Police found the illegal gun and ammunition of her son, who had slept on the couch in the daughters apartment on several occasions. Did the mother have lawful authority to consent to a search of her daughter's apartment?
No. Mother had no established access. Police should have asked whether there was a landlord-tenant relationship, but they didn't. Gun and ammo suppressed.
57
Three children (14,12,8) lived with mother and her boyfriend, who both worked nights and left kids alone. The boys observed large amounts of marijuana in the apartment, and went to police with help of their biological father. Father told police that he feared the boys would be in danger if they helped officer prepare affidavit for search warrant. He suggested that an officer visit the apartment so the boys could let him in. The court found this search:
Consensual. "Children who are routinely left alone may consent to police entry and a limited search".
Note: Until this issue is addressed by appellate court, safest course of action is (1) wait for parents to return and seek consent; or, ideally (2) secure the premises and obtain a warrant.
58
Third parties may ONLY consent to police entry and/or search if they are (blank) or in possession of an (blank)
Co-inhabitants(with joint access and control), or in possession of an explicit contract (allowing them permit a POLICE search).
-The second requirement applies to landlords, property managers, hotel/motel clerks. Written agreement must specifically authorize a police search, not just permission to staff to conduct room inspections.
59
Before they can enter, and/or search based on consent, officers must ask questions to determine whether the third party is a true co-inhabitant, or is in possession of a contract authorizing him or her to permit a police search (which officer rarely, if ever, encounter). This is known as the (blank) Rule
The Porter Rule.
Does NOT apply to exigent circumstances. Ex. Exterminator lawfully entered apratment and saw a sawed off shotgun. When he notified police, they immediately responded, secured the weapon, and applied for a search warrant. Valid.
60
May third parties allow police to enter and/or search a common area, or an abandoned unit ?
Yes.
Ex. Arson investigation outside tenants locked office; landlord may consent to police search once tenant clearly abandoned unit or comes to the end of a lease term.
61
A tenant or roommate may consent to a police search, except in areas where the suspect maintains:
exclusive control.
62
True or false:
A host may consent to a police search of any jointly used property or area, even including where his guest maintains exclusive control over a room, suitcase, or dresser drawer, that the guest reasonably believes the host will not intrude upon.
False.
A host may consent to a police search of any jointly used property or area, EXCEPT where his guest maintains exclusive control over a room, suitcase, or dresser drawer, that the guest reasonably believes the host will not intrude upon.
63
A (blank) receives property from a (blank)
A Bailee receives property from a Bailor.
A Bailiee may typically consent to a search while he controls the property.
64
A bailee may not consent to a search beyond the scope of his (Blank). For example, a coat check attendant at an event could not consent to a search of a closed package left by a patron.
Scope of his limited authority.
65
An employer may consent to a search of his business premesis or property except for areas under the (blank) of an employee.
Exclusive control of an employee.
66
May officers rely on individuals who act as though they have the authority to allow police to enter and/or search?
Yes. (Apparent authority)
- The circumstances must make it reasonable for officers to believe the person has authority.
67
Officers may rely on individuals who act as though they have the authority to allow police to enter and/or search. If Officers should doubt the person's authority, what must they do?
Ask further questions.
"Who are you?" Whose room/apartment/house is this ?"
Note: Police do NOT have to ask questions when it seems OBVIOUS that the person has the authority to let them in.
68
Police responded to a 911call concerning rape, and were met on the porch by the victim's mother,who identified herself as the 911 caller. She led them into the first floor apartment, and police believed she had the authority to let them in. They would later find out the woman did not live there. Should they have asked more questions?
No, police reasonably believed she had authority.
Police do NOT have to ask questions when it seems OBVIOUS that the person has the authority to let them in.
69
Consent to search vehicle. First, Officers must have :
A valid reason to stop the motorist.
70
Consent to search vehicle. First, officers must have a valid reason to stop the motorist; Second, officer must have (blank) that evidence of crime will be found inside the vehicle.
A reasonable suspicion.
71
As long as officers clearly tell a motorist he is free to refuse, may they request consent to search during a routine traffic stop?
No. Officers may NOT.
72
May officers request consent to search at the end of a routine stop, so long as they tell the motorist he is free to leave first?
No.
In Massachusetts, once officers return a motorists paperwork, the stop is over.
73
Reasonable suspicion that there is evidence in a vehicle is (blank) in order to detain a motorist and request consent.
Required.
74
Reasonable suspicion that there is evidence in a vehicle is required in order to detain a motorist and request consent to search. There is one exception, what is it?
Request to consent without suspicion is only permitted in a taxi safety program. "To check on the OPERATOR'S safety". Participation is voluntary by the cab driver- vehicle displays special decals indicating driver participates in the program.
75
True or false:
Officers must explain to a motorist why they are asking for consent and what they will look for if consent is granted.
FALSE. Officers do not have to explain either.
They also do not have to inform the motorist of his right to refuse.
76
Consent to search vehicles: Proper consent: Officers should:(4)
1. Ask for the consent the same way each time
2. Ask only one time
3. Get verbal instead of written consent
4. Get a clear response
77
Consent to search vehicles: Requesting consent is an investigative step that (blank) on the side of the road during a traffic stop.
Spontaneously develops.
78
Consent to search vehicle:
The owner, who is typically the driver, has the primary authority to consent to a vehicle search. If the owner is not present, the driver may consent to a police search; a (blank) typically does not have that authority.
Passenger.
79
Passenger, after arrest, asked trooper to retrieve his guaitar from the trunk; the trooper obtained keys CONSENSUALLY from the driver; in the trunk, the trooper saw cocaine in the plain view; the court said this was a :
VALID consent search
80
May police use consent from one occupant to search items that obviously belong to another?
No.
*** This is different from a motor vehicle search based on probable cause, where ANY object that may hold evidence is subject to a search.
81
Do officers need to ask for separate permission to look inside each closed container they encounter in the glove box, passenger compartment, and trunk?
No.
A persons general consent covers a search of closed and open containers in the glove box, passenger compartment, and trunk.
82
Consent to search vehicle: Scope: Officer have some latitude in how they search passenger compartment, glove box, and trunk- as long as they do not:
Damage property.
83
Consent to search: Scope: Do officer need separate permission to open container that are actually locked (locked brief case for example)?
Yes
Officer properly opened a briefcase in the trunk by manipulating its combination lock; however it would have been unreasonable to break open a locked briefcase without additional permission from the suspect.
84
Do officers need separate permission to search beyond the passenger compartment, glove box, and trunk? (For example, under the hood)
Yes.
Officers searched car, then opened the hood and, after removing the air filter, discovered a black bag with two guns. Their engine search was unlawful. Defendant did not expect the consent search to extend to his engine.
85
To determine whether consent was lawful, a reviewing court examines the (blank) of the (blank).
totality of the circumstances.
86
There are three essential elements of any consent search by officers:
1. Voluntary and clearly communicated.
2. Lawful PRESENCE and proper SCOPE
3. Authority
87
A high school student was selling drugs from his home. After a sale of marijuana to an undercover officer, a uniformed sergeant entered the house by a back stairway that led to the student's bedroom. There was no indication that the student or anyone else knew that he had sold drugs to an undercover officer when the sergeant abruptly entered. The sergeant went down the interior stairs to the living room and confronted the student's parents. The parents signed a consent form to search their son's bedroom. The police found marijunana. Proper or improper?
The search of the student's room was illegal, because the parent's consent was involuntary- since it came after an illegal police entry.
88
Police receive a report that a man named Orlando threatened a person with a gun. Officers arrived at his apartment and, when Orlando answered the door and was identified by the victim, he was handcuffed. At this point, his mother arrived on scene and said that Orlando had recently moved in with her. Officers asked her if they could go inside the apartment and search. She agreed. Orlando said nothing. Officers discovered the handgun that Orlando had used in the assualt. Was their entry and search lawful?
Yes. Absent Orlando's objection, his mother could consent to the police entry and search.
If Orlando had objected, police would have had to secure the scene and obtain a warrant.
89
Third parties may only consent to a police search of a home if they are (blank) or in possession of a(an) (blank-2 words) authorizing them to consent to a police search.
1. Co-inhabitants
2. explicit contract
90
Police believe that evidence linking Anthony to a burglary will be located in an apartment where he is a guest. Without obtaining a warrant, two officers visit the tenant, Michelle, who gives them oral consent to search. Michelle points out two bags in the corner of her bedroom that she says belongs to Anthony- a backpack and a shopping bag. She asks police to tell Anthony that he is no longer welcome in her apartment because she suspects he stole her air conditioner. May the police search the bags?
No, Anthony maintained a reasonable expectation of privacy in the bags.
Note: Comm vs Magri
