The mere submission to authority is not consent. U.S. v. Gillis, 8 MJ 118 (CMA, 1979). Although
an individual may voluntarily give up his Fourth Amendment protection, it is not enough if he simply
"acquiesced or submitted to the agents' claim of authority." U.S. v. Mayton, 1 MJ 171 (CMA, 1975). In
one case, the police were let into a home by the suspect's 66-year-old grandmother. They told her they
had a warrant, which wasn't true. Their subsequent claim that she "consented" to their entry was not
valid. What existed was mere submission or acquiescence to their authority: "When the law
enforcement officer claims authority to search a home under a warrant, he announces in effect that the
occupant has no right to resist the search. The situation is instinct with coercion...Where there is
coercion, there cannot be consent." Bumper v. North Carolina, 20 L. Ed.2d 797 (1968).
In another case, an MP said, "Good morning, sir. I am making a search of vehicles. Would you
step outside and open up the trunk?" This, too, was not a valid consent. The MP was polite, but had
announced that he was making a search. This was, then, an implicit show of authority, so the search
was the result of coercion, not consent. US. v. Chase, 1 MJ 275 (CMA, 1976). Where the suspect is
given no option, the result will be deemed a acquiescence, not consent. US. v. White, 27 MJ 264 (CMA
1988).
What if the suspect asks what will happen if he refuses to consent? Can you tell him that, in such
an event, you will apply for a search authorization? In U.S. v. Rushing, 38 CMR 96 (CMA, 1967), the
court held that such a statement "is nothing more than the statement of an intention to follow a legal
course of action," and that it was not coercive. The mere fact that the suspect believes that "a warrant
may and will be secured" does not invalidate the consent. U.S. v. Marrelli, 15 CMR 276 (CMA, 1954).
Consent may still be valid, even if the suspect is told that if he doesn't consent, an authorization WILL
be obtained. U.S. v. Nicholson, 1 MJ 616 (ACMR, 1975). It is, however, preferable to simply state you
will APPLY for one, and not announce that you WILL GET ONE.
Consent "which is the product of misrepresentation, fraud, trickery, or deception is not voluntary"
and therefore renders inadmissible any evidence which is obtained thereby. U.S. v. Kennedy, 50 CMR
1 (AFCMR, 1975). "Consent is not free or voluntary when it is acquired by trick or deceit." U.S. v.
Holler, 43 CMR 461 (AFCMR, 1970). There is no requirement to tell a suspect what you are looking
for. U.S. v. Kennedy, 50 CMR 1 (AFCMR, 1975). If he asks, however, do not deceive him. Fraud will
prevent a finding of a valid consent.
Relevant factors in determining the issue of consent include the issue of custody, the length and
tone of any interrogation, the presence of any threats, and the age/background of the accused. Also,
did the accused actually assist in the search, such as by helping to unlock the trunk of his vehicle?
U.S. v. Decker, 37 CMR 17 (CMA, 1966). Overall, what is needed is an "uncoerced election to grant
the license to search." Asking a suspect to hand over the keys to his car trunk was not consent. U.S. v.
Mota Aros, 8 MJ 121 (CMA, 1979). In one interesting case, the accused's commander went with the
military police to the accused's barracks. He was also accompanied by a supply sergeant who was
equipped with a sledgehammer and boltcutters. The commander asked the accused for permission to
search his locker, adding the statement, "with or without your consent, it will probably be opened
anyway." The court found that there was no consent. Indeed, the commander had stated that the
locker would be opened even without consent. This, along with the presence of the supply sergeant
and his equipment, "was unlikely to cause the accused to believe that his refusal to consent to the
search would be effective." U.S. v. Vasquez, 47 CMR 795 (CMA, 1973).
MP1021
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