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Valid Consent
A valid Consent allows an officer to search the individual or his property without a warrant. The Circuit Courts have outlined factors to determine whether a consent given was valid or not.
The Fifth Circuit has five factors to determine whether consent is valid. The five factors are: “(1) the defendant’s custodial status, (2) the presence of coercive police procedures, (3) the extent and level of the defendant’s cooperation with the police, (4) the defendant’s awareness of his right to refuse consent, (5) the defendant’s intelligence, and (6) the defendant’s belief that no incriminating evidence would be found. No single factor is dispositive.” United States v. Gonzales, 79 F.3d 413, 421 (5th Cir. 1996).
The Eighth Circuit examines the individual characteristics of the person giving the consent and the environment in which the individual allegedly gave consent. United States v. Hathcock, 103 F.3d 715, 719-720 (8th Cir. 1997). The Eighth Circuit has factors for each component. The component for the individual characteristics are: “(1) age; (2) general intelligence and education; (3) whether an individual was under the influence of drugs, alcohol or otherwise; (4) whether an individual was informed of his or her Miranda rights prior to the consent; and (5) whether an individual had experienced prior arrests so that he or she was aware of the protections the legal system affords to suspected criminals.” Id at 719.
The factors for examining the environment where the alleged consent occurred are: “(1) the period of time the individual was detained or questioned; (2) whether the police threatened, physically intimidated, or punished the individual; (3) whether police made promises or misrepresentations, upon which the individual relied; (4) whether the individual was in custody or under arrest at the time consent was given; (5) whether the consent occurred in a public or a secluded place; and (6) whether the individual stood by silently while the search occurred.” Id at 719-720.
The Ninth Circuit has a five factor test to determine whether the consent is voluntary. The five factors are: “(1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that [he] had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained.” United States v Washington, 490 F.3d 765, 775 (9th Cir.2007).
Each Circuit has their own factors, but some factors overlap with each other. The Circuit Courts do not want to see an individual coerced by law enforcement. They want to make sure that the statement was given voluntary without any coercion.
If you have questions of whether you gave an officer valid consent to search, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Valid Consent Attorney
