Consent to Search Requirements

If a person consents to a search then under most circumstances police may undertake a search of whatever area the consent permits, however certain requirements are necessary for consent to be valid. The most important requirement is that the consent be voluntary. Which means it must not be coercive or forced.

Police need not suspect criminal activity to justify approaching a citizen on the street or knocking on their door to request a consent to search. This may include an anonymous tip or other not necessarily reliable information. [1]

Under most circumstance a person may refuse to consent.[2] The term “consent” implies that it must be voluntary. Because all citizens possess this inherent right, the failure of police conducting a search to advise a person of this right is not a relevant factor to consider in determining voluntariness. Part of the request for permission to search is always the fact a person may refuse. [3]

The fact that a person is detained by the police rarely affects the right to refuse a search unless the detention is unlawful. Therefore normally the police need not advised a person detained that they may refuse a request to search or are “free to leave.”[4] To validate the consent it is unnecessary that it is shown by the circumstances that the person knew of the right to refuse consent. [5]

The consent can always limit the extent of the search. A general consent is one where the person consenting has not place any restrictions on the extent of the search. However, even where no restrictions are placed on the search it remains limited to what a reasonable person intended when they consented to a search. For example a person consenting to the search of their car would not reasonably believe such a consent permitted the police to force open a locked briefcase found in the trunk.[6]

The time the police may devoted to a consent search can’t exceed the implicit limits placed on it in the consent. [7] This does not mean all searches must conform to time restrictions. Repeated searches over an extended period may be justified based on a single consent depending on the particular circumstances of the consent. [8]

[1] People v. Rivera (2007) 41 C.4th 304, 308, 309, 59 C.R.3d 473, 159 P.3d 60

[2] People v. Wetzel (1974) 11 C.3d 104, 108, 113 C.R. 32, 520 P.2d 416.

[3] People v. James (1977) 19 C.3d 99, 114, 137 C.R. 447, 561 P.2d 1135; People v. Roberts (1966) 246 C.A. 2d 715, 729, 55 C.R. 62; People v. Tremayne (1971) 20 C.A.3d 1006, 1014, 98 C.R. 193; People v. Ramirez (1997) 59 C.A.4th 1548, 1552, 70 C.R.2d 341

[4] Ohio v. Robinette (1996) 519 U.S. 33, 117 S.Ct. 417, 421, 136 L.Ed.2d 347, 355

[5] People v. Zamudio (2008) 43 C.4th 327, 346, 75 C.R.3d 289, 181 P.3d 105

[6] Florid v. Jimeno (1991) 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297

[7] People v. Cantor (2007 ) 149 C.A.4th 961, 57 C.R.3d 478,

[8] People v. Gorg (1955) 45 C.2d 776, 291 P.2d 469.