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Search and Seizure for Police and Prosecutors

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Consent to Stop and Search

 

  1. Consensual encounters.
    1. A consensual encounter is not a seizure under the Fourth Amendment as long as a reasonable person would feel free to leave.
    2. Whether a reasonable person would feel free to leave depends on:
      1. The conduct of police in initiating the encounter,
      2. The attributes of the individual citizen, and
      3. The physical surroundings of the encounter.
  2. Consensual searches.
    1. Person giving consent must have authority to consent.
      1. Ownership of the premises is not determinative.
      2. Authority to consent is determined by the circumstances of the person’s connection to the property, such as:
        1. The person’s access to the property,
        2. The person’s control over the property,
        3. The person’s use of the property.
      3. A person who has joint access, control or use of the property with others has the authority to consent to a search.
      4. A person’s authority to consent is limited to the areas of the property that person has access to, control over or use of.
      5. Apparent authority to give consent is not sufficient; officer should determine whether the person has authority to give consent before entering the premises.
    2. Consent to search must be voluntary.
      1. Consent must be freely and intelligently given.
      2. There must be no duress or coercion.
      3. Consent must be unequivocal and specific.
      4. The State must have clear and convincing evidence of the voluntary consent.
    3. Validity of the consent depends on the totality of the circumstances.
      1. Knowledge of a right to refuse may show a valid consent but is not required.
      2. Miranda warnings are not required for a valid consent to search.
      3. The fact that a defendant is being taken into custody does not negate consent.
      4. An assertion that a search warrant will be obtained anyway negates consent.
    4. Consent to search following an illegal detention may not be valid.
      1. The consent must be sufficiently attenuated based on intervening factors.
      2. Validity depends on the purpose and flagrancy of official misconduct.
    5. Consensual search is limited to the scope of the consent given.
      1.  A consensual search may not be extended beyond the limits of the actual consent.
      2. Objective reasonableness is the standard for measuring the scope of consent.
      3. Consent may be invalid if it is given after officer asks questions that are unrelated to the reason for the stop and are not supported by reasonable suspicion.

I.  Consensual Encounters. 

A police officer may approach a person on the street or in another public place and ask that person questions and request identification without the encounter involving a seizure under the Fourth Amendment.1 The key is whether the officer imposes any restriction on the person’s freedom to leave.2 The restraint on a person’s freedom of movement may be affected either by physical force or by a show of authority.3

The factors that determine whether a reasonable person would feel free to leave are 1) the conduct of the police, 2) the attributes of the individual citizen, and 3) the physical surroundings of the encounter.4 If an officer simply approaches a person and asks questions in a non- threatening or non-coercive manner, there is no seizure. The officer may also request identification without the encounter becoming a seizure under the Fourth Amendment. Circumstances that might constitute a seizure would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. 5

Restraint of a person’s freedom of movement encompasses more than a physical touching or physical restraint of the person. For example, a person’s freedom of movement is restrained by using a police car to block the road in front of the person’s parked vehicle. As to a show of authority, our courts have found that officers yelling and ordering a suspect to stop is a sufficient show of authority to render a police encounter non-consensual.6 A show of authority need not be so dramatic, however. For example, four officers displaying badges as they approached a parked vehicle was a sufficient show of authority to constitute a seizure. Similarly, a request that the driver of a parked car open the car door is a sufficient show of authority to make a reasonable person feel he is not free to leave and, therefore, constitute a seizure. 7

II.  Consensual searches. 

Consent is one of the recognized exceptions to the constitutional prohibition against warrantless searches.8 If there is a valid consent, probable cause is not required.9 However, consent to search a particular place must be given by a person “who is clothed with common authority or possesses some other sufficient relationship concerning the premises in question.”10 In other words, the person giving consent must actually have the authority to do so.11 Whether a person has authority to consent to a search depends on the person’s access to the premises, control over the premises, and use of the premises.12 Thus, whether a person owns the property is not determinative of his authority to consent to a search. Rather, a person’s authority to consent to a search is determined by whether that person has a legitimate expectation of privacy that society is prepared to recognize as reasonable.13

For example, an owner of a rented apartment does not have authority to consent to a search unless the person renting the apartment has abandoned it,14 or the owner has common authority over the apartment.15 Similarly, a parent who owns the family home does not have authority to consent to a search of an adult-child’s room unless the parent has access to the room and shares use of the room with the son.16  However, when two or more people have access to the premises and have joint use of the premises, such as a husband and wife, each of those people may consent to a search independently from the other.17 Such authority extends to items of personal property that are within the joint possession of the occupants.18  The extent of a person’s authority to grant consent is limited to those areas of the premises to which the person has access and control. Thus, if a person has access to and control over a common area, such as the kitchen, but does not have access to a roommate’s bedroom, that person may consent to a search of the common area but not the bedroom.

If the consent was not valid because of a lack of authority to consent, then all of the evidence found during the search will be excluded. Therefore, it is extremely important for an officer seeking consent to determine that the person giving consent actually has the authority to do so. It is not sufficient for the officer to rely on the appearance of authority to consent.19 For example, an officer may not rely on the fact that the person giving consent opened the door for the officer and allowed the officer to enter the premises without objection.20 Before entering, the officer must determine the circumstances of that person’s relationship to the premises.21 In other words, unless the officer already has information that the person opening the door and granting entry owns or resides at the premises, the officer must determine the nature of the person’s presence in the premises. If the person is merely a temporary guest, the officer cannot rely on that person’s consent to enter and search. The officer must obtain consent to enter and search from a person having authority to give such consent.

A consent to search must be voluntary; it must be freely and intelligently given; it must not be the product of duress or coercion, actual or implied; and it must be proved by clear and positive evidence with the burden of proof on the State.22 In order for consent to be considered voluntary, it must be unequivocal and specific.23 Moreover, the validity of the consent is determined based on the totality of the circumstances.24 Actual consent must be clearly shown to overcome the presumption against waiver of constitutional rights.25

Proof of knowledge of a right to refuse is not required for an effective consent to search, but it can be used to establish the existence of a valid consent.26 Miranda warnings are not a prerequisite to obtaining a valid consent to search.27 The fact that a defendant is being taken into custody at the time he gives a consent to search does not negate the validity of the consent.28 Consent obtained based on a police officer’s statement that he will obtain a search warrant anyway will not justify a search without a warrant, because it amounts to no more than acquiescence to a claim of lawful authority.29 If, on the other hand, an officer comments that he “feels” or “believes” he has enough evidence to secure a search warrant, such a comment does not rise to the level of coercion or duress that would invalidate consent.30 In addition, even an unequivocal assertion that the officer could get a warrant may not invalidate a consent as long as there is probable cause to support a warrant; if a warrant is obtainable, the defendant’s privacy rights under the Fourth Amendment are not violated.31

Where there is an illegal stop or detention, there must be intervening factors to establish that a subsequent consent to search is sufficiently attenuated from the tainted encounter.32 The validity of a consent to search following an illegal detention also depends on the purpose and flagrancy of official misconduct.33

A consent to search is limited to the scope of the consent given.34 When police have stated that a search is for a particular purpose and the defendant has consented, the search may not be expanded to a general exploratory search.35 The standard for measuring the scope of a consent to search is one of “objective reasonableness”: what a typical reasonable person would have understood from the discussion between the police officer and the defendant.36

A consent to search may also be invalid if it is given in connection with questions that are unrelated to the reason for the stop. For example, when a person is stopped for littering and suspicion of larceny, his consent to search for guns, alcohol or illegal drugs is tainted because the request for consent exceeds the purpose of the initial stop.37 As a result, an officer may not request consent to search for items unrelated to the purpose for stopping the person.38 However, a request for consent to search may be permissible and lead to a valid consent to search if— based on specific, articulable facts—the officer’s suspicions broaden to include such matters during an investigatory stop.39

 

ENDNOTES

1 State v. Walters, 1997-NMCA-013, ¶ 18, 123 N.M. 88, 934 P.2d 282; State v. Scott, 2006-NMCA-003, ¶ 18, 138 N.M. 751, 126 P.3d 567.

2 State v. Jason L., 2000-NMSC-018, ¶ 15, 129 N.M. 119, 2 P.3d 856.

3 Id. (citing State v. Lopez, 1989-NMCA-030, ¶ 3, 109 N.M. 169, 783 P.2d 479).

4 Id.

5 Lopez, 1989-NMCA-030, ¶ 10.

6 State v. Garcia, 2009-NMSC-046, ¶ 41, 147 N.M. 134, 217 P.3d 1032.

7 Lopez, 1989-NMCA-030, ¶ 11.

8 State v. Flores, 2008-NMCA-074, ¶ 12, 144 N.M. 217, 185 P.3d 1067 (quoting State v. Mann, 1985-NMCA-107, ¶ 21, 103 N.M. 660, 712 P.2d 6). Consent to search is an issue only when law enforcement officers have conducted a search. Officers do not need consent to employ a method of investigation that is not a search, such as a dog sniff in which the dog does not intrude on the suspect’s reasonable expectation of privacy. See State v. Van Cleave, 2001-NMSC-031, ¶ 13, 131 N.M. 82, 33 P.3d 633.

9 State v. Bidegain, 1975-NMSC-060, ¶ 9, 88 N.M. 466, 541 P.2d 971.

10 State v. Wright, 1995-NMCA-016, ¶ 16, 119 N.M. 559, 893 P.2d 455.

11 Id. ¶ 19 (holding that, under Article II, Section 10 of the State Constitution, apparent authority to consent to search is not sufficient).

12 State v. Cline, 1998-NMCA-154, ¶ 7, 126 N.M. 77, 966 P.2d 785 ( quoting United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974)).

13 State v. Clark, 1986-NMCA-095, ¶ 10, 105 N.M. 10, 727 P.2d 949.

14 Id. ¶¶ 12-14. 

15 State v. Monteloeone, 2005-NMCA-129, ¶ 12, 138 N.M. 544, 123 P.3d 777. Common authority over the apartment requires more than the right to occasionally enter; the landlord must have an equal right to enter and occupy the apartment. Id. ¶ 13.

16 State v. Diaz, 1996-NMCA-104, ¶¶ 9, 15-16, 122 N.M. 384, 925 P.2d 4.

17 See State v. Madrid, 1978-NMCA-003, ¶¶ 6-11, 91 N.M. 375, 574 P.2d 594; State v. Walker, 1998-NMCA-117, ¶¶ 13-14, 125 N.M. 603, 964 P.2d 164; Cline, 1998-NMCA-154, ¶ 18.

18 Cline, 1998-NMCA-154, ¶¶ 18-19 (the defendant’s husband had authority to consent to search the defendant’s personal pouch found in their joint bedroom).

19 Wright, 1995-NMCA-016, ¶ 16 (apparent authority to consent is not sufficient under Article II, Section 10 of the New Mexico Constitution); see also State v. Celusniak, 2004- NMCA-070, ¶ 20, 135 N.M. 728, 93 P.3d 10.

20 See Wright, 1995-NMCA-016, ¶ 17.

21 Id. ¶ 20.

22 State v. Aull, 1967-NMSC-233, ¶ 22, 78 N.M. 607, 435 P.2d 437; State v. Chapman, 1999-NMCA-106, ¶¶ 19-25, 127 N.M. 721, 986 P.2d 1122.

23 State v. Flores, 1996-NMCA-059, ¶ 20, 122 N.M. 84, 920 P.2d 1038; State v. Davis, 2013-NMSC-028, ¶ 14, 304 P.3d 10.

24 State v. Pallor, 1996-NMCA-083, ¶ 16, 122 N.M. 232, 923 P.2d 599.

25 Davis, 2013-NMSC-028, ¶ 14.

26 State v. Valencia Olaya, 1987-NMCA-040, ¶ 25, 105 N.M. 690, 736 P.2d 495; State v. Flores, 2008-NMCA-074, ¶ 16, 144 N.M. 217, 185 P.3d 1067 (officer conducting a “knock and talk,” in which officer approaches an individual and asks for consent to search, need not advise the individual of the right to refuse the request for consent to search); State v. Carlos A., 2012-NMCA-069,¶ 16, 284 P.3d 384 (officer requesting consent to search vehicle need not inform driver of the right to refuse, but the driver’s knowledge of the right is a factor in determining voluntariness of consent).

27 Mann, 1985-NMCA-107, ¶ 23. 

28 State v. Blakely, 1993-NMCA-053, ¶ 13, 115 N.M. 466, 853 P.2d 168.

29 State v. Lewis, 1969-NMCA-041, ¶ 16, 80 N.M. 274, 454 P.2d 360.

30 State v. Shaulis-Powell, 1999-NMCA-090, ¶ 11, 127 N.M. 667, 986 P.2d 463.

31 Shaulis-Powell, 1999-NMCA-090, ¶ 12.

32 State v. Bedolla, 1991-NMCA-002, ¶ 23, 111 N.M. 448, 806 P.2d 588; State v. Jutte, 1998-NMCA-150, ¶¶ 22-23, 126 N.M. 244, 968 P.2d 334; State v. Warsaw, 1998-NMCA-044, ¶ 23, 125 N.M. 8, 956 P.2d 139.

33 State v. Hernandez, 1997-NMCA-006, ¶ 31, 122 N.M. 809, 932 P.2d 499.

34 Flores, 1996-NMCA-059, ¶ 22.

35 Id. ¶ 23.

36 Id.

37 State v. Taylor, 1999-NMCA-022, ¶¶ 17-29, 126 N.M. 569, 973 P.2d 246; see also City of Albuquerque v. Haywood, 1998-NMCA-029, ¶¶ 15-18, 124 N.M. 661, 954 P.2d 93.

38 State v. Figuroa, 2010-NMCA-048, ¶¶ 23-25, 148 N.M. 811, 242 P.3d 378; State v. Duran, 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836.

39 Chapman, 1999-NMCA-106, ¶¶ 13-18; Duran, 2005-NMSC-034, ¶ 23.