What is a Consent to Search?

A consent to search is allowing the police or members of law enforcement to search a certain item or area, over which you have authority. This post will discuss what police need to obtain a search warrant for your property, what a consent to search is, and how you can try to get the evidence suppressed.

What is a Search Warrant?

Under federal law, searches of someone’s home or property require a search warrant. A search warrant is a document from the Judge authorizing law enforcement officers to search a particular area or item. In order for the judge to approve the search warrant, the judge needs to determine if law enforcement is able to articulate that there is probable cause to believe that the place to be search contains evidence of the crime. Common examples of federal search warrants can be found here.

What are different parts of a Search Warrant?

1. Search Warrant Affidavit

In order to obtain a search warrant, law enforcement (with the help of a federal prosecutor) prepare an affidavit, which contains:

A brief description of the case and their investigation;
Specific item or place the police are interested in searching;
How the item or place relates to their case;
Why there is probable cause to believe that the item contains evidence relevant to the case.

2. Stenographic Minutes of the Proceeding

After reviewing the affidavit, the Court will put the officer who is applying for a search warrant (this person is called “the affidavit”) under oath. The Court will then ask if the affidavit is accurate under penalty of perjury. The Court may also ask follow up questions regarding the case or the search warrant application. The questioning of the law enforcement officer is usually recorded in New York State court by a stenographer or a court reporter, who types up a transcript of the proceeding. This transcript is called “Search Warrant Application Minutes.” In federal court, however, there is no stenographic record of the Affiant’s questioning by the Court.

3. Search Warrant

After conducting the interview of the affiant and reviewing the search warrant, the Court will issue a search warrant if there is probable cause to believe that the area to be searched contains relevant evidence. The Court will issue a document signed by the judge and stamped by the clerk of court authorizing law enforcement officers to search a certain place or item.

The Court will also specify any limitations on that search – certain hours of the day, specific rooms in the house, etc. The search warrant is usually one page in length and does not include the affidavit that the law enforcement officers submitted in support of getting a warrant. The search warrant affidavit will later be provided in discovery.

4. Search Warrant Returns

The Court will also request that the police or law enforcement agents provide an itemized list of all the items recovered during the search warrant. This is called a “Search Warrant Return.” The Court will specify how long after the execution of the search warrant the police have to file search warrant returns with the Court.

What Are Exceptions to the Search Warrant Requirements?

Under federal law, searches and seizures without a warrant are presumed to be unreasonable. (See Payton v. New York, 445 U.S. 1973 (1980)). However, there are several exceptions to the warrant requirement, which are explained below.

1. Exigent Circumstances

Exigent Circumstances is an exception to the warrant requirement, which allows law enforcement to enter to premises to render aid to injured people, or prevent imminent injury to someone on the inside. Exigent circumstances may also exist in situations where law enforcement are in “hot pursuit” of the suspect, who runs inside the premises. An example of exigent circumstances is police hearing screams for help inside an apartment.

2. Plain View Doctorine

Plain view doctrine is another exception to the warrant requirement. Under the plain view doctrine, if the police officers or other members of law enforcement observe the item or contraband out in the open, they do not need a search warrant to recover the item. In order for the plain view doctrine to apply, the police must have lawful access to the location at the time they observe contraband or evidence in plain view. A common example of a plain view doctrine is police responding to a 911 call and observing drugs or a gun in the living room during their interview of the 911 caller.

3. Protective Sweep

A protective sweep is a non-invasive search of the premises by law enforcement, which usually precedes a consent to search, or follows the execution of an arrest warrant. During a protective sweep, law enforcement conducts a brief cursory search of the premises to ensure there are no other dangerous individuals at the location. This is done for officer safety.

4. Consent

Consent to search is probably the most litigated exception to the warrant requirement, which will be explained in greater detail below. Consent to search is permission from an individual with authority over the property, which allows the law enforcement to enter and search the premises. When proper consent to search is obtained, no search warrant is required.

Security sweeps or searches “may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the . . . scene.” Maryland v. Buie, (2d Cir. 2004). The Court held that protective sweeps are permissible if the arresting officers had “(1) a reasonable belief that third persons (were) inside, and (2) a reasonable belief that the third persons (were) aware of the arrest outside the premises so that they might destroy evidence, escape or jeopardize the safety of the officers or the public.” U.S. v. Agapito, (2d Cir. 1980).

Consent to Search Explained

Under both federal and New York State law, the Government bears the burden of proving that consent was voluntarily given. The test in reviewing a consent to search is whether, in the totality of the circumstances the consent was given voluntarily and without coercion. In United States v. Reyes, Judge Underhill explained the Second Circuit law regarding consent:

“Consent is voluntary if it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Whether a suspect gave his consent voluntarily is a fact-intensive inquiry that courts determine by the totality of all the circumstances. Courts consider the defendant's age, education, intelligence, length of detention[;] the government's use of physical punishments or deprivations[;] and whether the alleged consenting person was advised of his constitutional rights. 

In addition, the Second Circuit has found, in cases where consent is obtained from a person in custody, that whether guns were drawn or the consenting individual was frisked . . . or whether the consenting individual was threatened, was in a public area, or was informed that he had the option of refusing consent to the search … [are] relevant factors in determining the voluntariness of the consent. [T]he fact that a defendant is in custody does not alone vitiate his consent to a search, but consent to search obtained from a person in custody does require more careful scrutiny. A suspect's consent is not voluntary when the suspect merely acquiesces and submits to apparent lawful authority. The ultimate question presented is whether the officer had a reasonable basis for believing that there had been consent to the search.”

Consent to Search Obtained by Misleading or False Information

There is no clear precedent in New York State or in the Second Circuit about whether consent to search is valid when it was induced by misleading or false information. However, in U.S. v. Robson, the Ninth Circuit held that “a search is unreasonable, even if consensual, if the consent is obtained by trickery or deceit.” (9th Cir. 1973). However, the Second Circuit has not adopted this rule.

Extreme Misrepresentation Regarding Purpose of Visit

District Courts within the Second Circuit have found a suspect’s consent to search “to be involuntary where law enforcement’s misrepresentation of the purpose of their visit was “so extreme . . . [that the suspect][was] deprived of the ability to make a fair assessment of the need to surrender his privacy.” U.S. v. Peterson, (D. Conn. Nov. 20, 2018). The Courts have repeatedly granted suppression motions in situations where law enforcement employed a ruse to obtain consent or made representations about their ability to obtain a search warrant. Specifically, suppression was granted in these cases:

Suppression granted when law enforcement officer asked if he could enter the Defendant’s hotel room to search for a missing child, when the officer actually intended to search for evidence of drug dealing, (U.S. v. Montes-Reyes, 547 F. Supp. 2d 281 (S.D.N.Y. Apr. 13, 2008));
Suppression granted where officers falsely induced “fear of an imminent life-threatening danger” by claiming they were checking for gas leaks (U.S. v. Giraldo, 743 F.Supp. 152 (E.D.N.Y. Aug. 24, 1990));
Suppression granted when it was “highly misleading” for police officers to tell Defendant’s father that police could get a warrant to induce him to give consent (U.S. v. Munoz, 987 F. Supp. 2d 438 (S.D.N.Y. Dec. 18, 2013)).

Contact Top Rated New York Federal Defense Lawyers

If you or a loved one had a search warrant executed on your home or other property, or have been bullied into signing a consent to search form, you need experienced counsel. Just because the search warrant was issued or consent to search was signed, doesn’t mean that the police did everything property. Contact us to schedule your consultation and start fighting your case today.