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Police Searches Without A Warrant; Consent

Under the Fourth Amendment and the Oklahoma Constitution, warrantless searches are per se unreasonable, absent a recognized exception. There are several recognized exceptions, as explored in earlier blog posts on this subject. In this post, we will examine the exception of consent.  A warrantless police intrusion into a protected area is reasonable, and thus constitutionally permissible, if preceded by free and voluntary consent.[1] This of course begs the question, what is free and voluntary? The United States Supreme Court has held “the question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”[2]

In Randolph v. State, the police knocked on the door of the defendant. When the defendant’s roommate opened the door, the police explained they received a tip someone was selling drugs in the apartment, and asked to enter. The roommate stepped to the side and told the police to “come on in”. The court held that such conduct by the roommate was free and voluntary consent to enter and search the premises.[3]

Who may consent to a search a home? Any person with common authority over jointly occupied premises may consent to a warrantless search.[4] Of course, another question which presents, what is the scope of a voluntary consent?

Police Searches Without A Warrant; ConsentWhen the police are relying upon consent as the basis for their warrantless search, they have no more authority than they have apparently been given by the consent … But, the question is not to be determined on the basis of the subjective intentions of the consenting party or the subjective interpretation of the searching officer. The standard is “that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the [consenting party]?”[5]

As the Supreme Court has held, consents to search are not given in the abstract. The police are interested in searching a particular place, and thus it is the practice for them to specify a certain place, such as a residence or vehicle. If, as is likely, the consent given in response is general and unqualified, then the police may proceed to conduct a general search of that place.[6]

As with most tests in criminal law that are based on the totality of the circumstances, each situation will be unique. If you have a question regarding consent in the context of warrantless searches, please contact our Tulsa criminal defense attorney for an opinion regarding your specific facts and circumstances.

[1] Burkham v. State, 1975 OK CR 150.

[2] Schneckloth v. Bustamonte, 412 US 218 (1973).

[3] Randolph v. State, 2010 OK CR 2.

[4] Smith v. State, 1979 OK CR 142.

[5] Florida v. Jimeno, 500 US 248 (1991).

[6] Id. 

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