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I Did Not Consent to the Search

Consent within the criminal justice system allows law enforcement to search with or without probable cause or reasonable suspicion.

For consent to be lawful the person must be authorized to give consent to search and it must be voluntary. If these elements are missing the search may be unlawful, and any evidence obtained may be excluded in court. The prosecution has the burden to prove that the consent was in fact lawful. To accomplish this, the prosecution must establish the following by a preponderance of the evidence – which means more likely than not:

  • The consent was actually given
  • Consent was provided by someone who had authority to consent
  • It was voluntary
  • It was not tainted by illegal police conduct (coercion)
  • The search did not exceed the scope of the consent

There are no specific words required to provide consent. Consent can be express or implied. Express consent may be an affirmative response to an officer’s request to search or may be provided by a written document. It may also include statements such as “I don’t care.” Consent may be implied by opening a door or moving and letting an officer into a residence.

It is important to understand that not everyone has the right to consent to a search. For consent to be valid, it must be provided by the owner, third party with actual authority, or a third party with apparent authority.

Actual Authority

The owner of the property has authorized the third party to give consent. Or a third party has joint access, control, or mutual use of the place to be searched. This typically includes spouses or domestic partners, roommates or cotenants, and parents consenting to a search of a child’s property.

Apparent Authority

This type of authority creates a real problem. Apparent authority allows law enforcement to search if they reasonably believe the person who consented to the search had the authority to consent. An experienced criminal defense attorney will know how to fight an apparent authority argument in court.

Contact my office today if you did not provide consent to search and you were arrested, charged, or under investigation as a result of that search. I will provide a free, confidential, consultation.