You have studied some of the investigative tools available to you; some are complex, some are
simple. Do not overlook the most obvious tool: the consent search. It is easy to forget this or to
assume that a sophisticated criminal will turn you down. The sophisticated criminal may give consent
out of arrogance, or he may not be as sophisticated as was thought.
Consent searches are easy because they do not require the foundation that other searches require.
You do not have to have probable cause to ask for consent to search. All the courts require is that you
show that the consent was freely and voluntarily given by a person who is lawfully in control of the
property. One of the things that makes the consent search so easy and so effective is that even though
a person has the right to refuse, to limit the search, and to stop at any point; the courts do not require
you to advise the subject of these rights. Schneckloth v. Bustamunte, 25 L.Ed 2d 854 (1978). Giving
consent to search is not self-incrimination, so Article 31 is not required when you ask for consent. U.S.
v. George, 9 MJ 607 (ACMR 1980). The courts will look at all of the surrounding circumstances to
decide if consent was freely given. Was the accused sober? Was he under apprehension? Who
asked for the consent? Were there any threatening poses or gestures? In U.S. v. Chase, 1 MJ 275
(CMA 1976), a gate guard said: "Good morning, sir. I am making a search of vehicles. Would you
mind opening your van?" The court held this to be a show of authority and that the accused backed
down rather than consented. Perhaps this would have been a valid consent if the act had occurred
anywhere but the gate, where people expect to be checked or even searched. The point is that the
courts will look at all of the circumstances to see if the consent was freely given.
The suspect can turn you down. He can limit you, or he can stop the search at any time. What if he
inquires, "What happens if I don't consent?" Tell him that you will try to get a search authorization.
This leaves him feeling that he still has his rights intact. It avoids unnecessary litigation over
voluntariness. Although the courts have allowed consent searches when the officer said he would get a
search authorization (U.S. v. Nicholson, 1 MJ 616 (ACMR 1975)), this approach just creates needless
litigation. Tell him you will try to get the authorization and avoid the unnecessary fight. You do not
have to tell him what you are looking for, unless he asks you. If he asks, tell him, but there is no
requirement to volunteer the information. When you tell him what you are looking for, you limit your
search to the areas large enough to hold the object of your search. U.S. v. Stroecker, 17 MJ 158 (CMA
1984). If you do not put in this limitation and he does not either, you may look anywhere you want. He
may stop your search at any time, but you are entitled to clear notice that the search is to stop. If a
suspect tries to hide something during your search he has not given you clear notice to stop and you
may seize any item (Stroecker, supra).
Remember, anyone lawfully in control of property may give consent. So, a person who borrows a
car may give consent to search the car. If two people share control of property, both can consent. If
you are not sure who has control, get a search authorization. The courts do not have a "good faith rule"
regarding consent searches; we have to get consent from someone who is lawfully in control of the
property.
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