Law enforcing agents are normally faced with the challenge of whether to conduct searches on individuals and their personal property. This is normally with the view of ensuring the safety of other citizens as well as their own lives. Further, there is always need to protect and make available evidence for criminal cases which could be destroyed if not obtained and protected at the right time. Under normal legal environment, warrants are issued to search a person or the personal belonging and property of the person to ensure that the evidence obtained from the searches are admissible in the legal procedure. However there are cases where searches need not have warrant in order to be executed, and are therefore referred to as warrantless searches (Bloom, 2003). The Fourth Amendment on the law related to searches of personal property defines and outlines the circumstances for the warrantless searches in what is conveniently known as exceptions to the searches law. One of the notable exceptions is the consent search which is done with the express or implied consent of the person with authority as pertains to the search (Bloom, 2003). This paper therefore explores the law related to consent search in America and especially the state of Nevada, as it evaluates the value of the rights of citizens and the limit to search private property and own self.
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Consent searches refer to the kind of searches done by law enforcement agents, with the prior permission of the person or the person whose property they wish to search. With the consent of the person, then the requirements for warrant of search according to the Fourth Amendment shall have been waivered and therefore the evidence obtained from the search becomes admissible in legal procedures (LaFave, 2004). The circumstance where the person gives consent to search is interpreted to mean that the citizen has agreed to let go his/her rights as provided by the fourth amendment. Although the citizen can always provide consent to be searched or for his/her property to be searched, the consent can be withdrawn or restricted to some areas at anytime by the citizen.
This results into arguments in cases where during a court procedure it is necessary that the prosecution establishes whether the search was carried out within the time the consent was effective, and whether the limits that were provided were adhered to during search. This has led to increased complications in the use of evidence obtained from consent searches in the prosecution of most criminal cases. The overall conflict that arises is whether the law enforcement agents were right in conducting the search and whether the search was really within consent. In conducting consent searches, the rights of the citizens to their private live and personal property should be upheld while also considering all the security preference (Holcomb, 2003).
Consent Searches in the State of Nevada
The requirements in Nevada are such that, once a person voluntarily gives consent to a law enforcement agent to search his/her person or property, then a Nevada search warrant is not required.
According to Nevada law, an individual has the right to refuse consent even if the officers are in possession of a warrant. This is quite helpful in circumstance where the content of the warrant may be moot. Such refusal cannot be used against the person in trial. The officers may as well go ahead with the search based on the warrant. Therefore, in the circumstance that the authority bestowed on the officers allow for a search, the citizen still has a right to refuse as the officers may use the consent sought from the person to cover the questionable grounds of the warrant.
In cases of consent searches where the citizen is deemed to have waivered his/her Fourth Amendment rights, the search warrant is normally not necessary. The person conducting the search in this case, as having been determined by the Supreme Court need not to be a law enforcement agent, while the person giving the consent need not to be the person who is being searched or whose property is being searched and has valid authority to give the consent for the search. Once the consent is given, the Fourth amendment rights are suspended and so there is no requirement to effect a warrant or likely cause to carry on the search since the consent is expected to have been given voluntarily and without any coercion. The key thing is that the person conducting the search is not obliged by law to identify himself/herself as the enforcement agent, which actually allows for evidence relating to searches obtained by undercover agents. This is the principle used in the case of Hoffa versus United States, where the evidence obtained by an undercover officer was considered admissible in the court procedure.
Although third parties can give consent for searches, their scope is limited. The person giving the consent need not be the person who the police suspect or who is ultimately charged from the evidence so obtained from the search, as seen in the cases of Lee versus United States and Lopez versus United States. For example, in a case where a premise is to be searched, then the person giving consent must have common authority to be able to give consent, such as the Chief executive of the organization and not a casual laborer. A case where there is more than one person with authority to consent to a search, for example, where two people occupy a premise with equal rights to the premise, the consent of one of them cannot be assumed to be the ultimate especially when the other person disapproves of the search. The circumstances where someone may be considered to have equal rights can always be determined depending on how much liberty and interest the person has in the property (Holcomb, 2005). For example a girlfriend may not be able to consent to the search of her boyfriend’s house because she does not have equal authority, while a wife can consent to the search of the closet or the most private property of her husband.
It is therefore clear that persons with less familial relationship do not have equal authority to consent to a search just like a hotel clerk cannot consent to the search of a guest’s room. The opinion of the disapproving person overrides the other. Similarly, a landlord cannot be considered to have authority to give consent to a search for the building when he/she is actually not the tenant. The belongings in the apartment or premise belong to the tenant and not the landlord and are exclusively the main interest for the search.
Consent to search an individual or property may be express or implied. Implied consent occurs in a case where the person involved in criminal act that necessitates a search is considered not to be in a position of giving an express consent for the search. For example, the state of Nevada like many other states defines and holds that through an officer’s own reasonable suspicion and belief that a driver is impaired due to alcohol or oher similar causes, search of the driver and his/her vehicle is an implied consent from the virtue that the driver uses a public street. If it were not consent, then the driver could not be on a public street where his/her action could endanger the lives of other users, otherwise the vehicle could have been in a private compound or parked somewhere.
Express consent on the other hand is a situation where a police officer seeking to search the property or a person, asks for permission from a valid authority and gets it. Before the consent is given, it cannot be assumed by virtue of silence or non response. The consent given will allow the officer to open the closets not open to public viewing like in the car, if in the opinion of the officer such compartment might fulfill the reason and purpose of the search. The express consent should further be examined to establish whether it allows the officer to search inclusive of certain closed containers in the car or property.
In giving the express consent, it is always common for people or drivers to specify the limits beyond which the search can go and for which reasons the officer may use other provisions if necessary to search, for example, emergency and or probable cause (Holcomb, 2005). In light of this, the driver of a car may affirm a search but restrict it to every other part except the trunk of the car to which the officer may search if he/she has a probable cause to believe that the trunk could contain illegal or contraband goods necessary as evidence and which could be destroyed if not seized in time. If the officer proceeds and search the restricted areas without probable cause, then the evidence obtained will be declared invalid and inadmissible in the court procedure for the determination of the case.
Legal Decisions on Consent Searches
Walker, Hemmens and Klotter (2008) explain that, once the officer or the person conducting the search establishes that he/she as obtained the consent to search the person or property, the search begins. As contained in the Fourth Amendment, the person may withdraw the consent at any time thus declaring any further searches illegal and rendering such evidence obtained thereof invalid. The officers conducting a search are required, by law, to stop immediately the consent is revoked. From the courts and in previous cases in various states and particularly Nevada, comments and actions have been used to validate withdrawal of consent. For example, asking an officer to stop the search or attempts to retrieve the property from the officer is a valid reason to believe the consent was withdrawn at that instance. An example is in the case of United States versus Billy, where it was established that Billy’s statement was a sufficient cause to believe he revoked the consent during the search when he said it was enough and he wanted the officers to stop the search. On the other hand, the action of Ho when he tried to retrieve his property from the searching officer was a revocation of consent he had earlier given. This is in the case of United States versus Ho. The most important thing to understand especially for citizens is that the withdrawal of consent should be clearly expressed and not assumed through actions such as expressing dislike or showing impatience, but categorically stating or demanding the search be stopped (Walker, Hemmens and Klotter, 2008).
In the case of the United States versus Gray, the court of appeal determined that the statements by Gray as to the search being ridiculous and as for how long the search would take were only an expression of dislike and impatience but not consent revocation, leading to the evidence being allowed to be used in the case and ensuring that the requirements of the Fourth Amendment were upheld by the officer. It was noted that, Gray and his passengers simply making protests to leave was not an express request for the search to stop which actually allowed the officer to continue with the search despite the protests. Further, there are circumstances where consent may not be revoked once it begins due to the argument of the courts that it may create a negative impact on law enforcement. Such cases include screening at airports and searches involving prison visitors.
The two situations normally result into loss of the rights to revoke consent. In the case of United States versus Herzbrun, the courts established that once the bag had entered the x-ray machine for screening then he had no constitutional rights to withdraw the consent. This is because any incomplete scan would promote airline terrorism since that would be an easy exit when detection is due and thus would risk the lives of more citizens at the expense of the personal rights of a few.
In the cases of visitors to prison facilities, it is necessary that there is warning to all visitors for the impending searches and that consents cannot be withdrawn in the course of the search. An example of this is in the case of United States versus Spriggs. The revocation of the consent is not ideal as explained by the court since it will encourage the smuggling of contraband goods, as such provisions will only make it easy for smugglers to escape safely and within the confines of the law. In light of all the circumstances that an individual may be able to revoke consent, same for the two situational exceptions, after commencing a search through consent and the officer establishes a reasonable suspicion or probable cause, the right to revoke the consent is lost. A reasonable suspicion is however not the refusal to consent to a search as determined by the court in the case of United States versus Fuentes.
It should also be understood that unlike Miranda rights, the officers conducting the search are not required by law to inform or advice individuals of their right to withhold approval, for the consent to be considered valid in a legal procedure (LaFave, 2004). This argument is based on the case of Schneckloth versus Bustamonte where the Supreme Court determined that it was not necessary for the plaintiff to have been informed of the rights to withhold consent in the search that ensued, which resulted to the evidence that the plaintiff’s attorney sought to invalidate. Other arguments that the law enforcing agents, upon obtaining a search warrant should conduct the search in a slowly manner or in any possible way that will give the person an chance to withdraw the consent was also determined by the court in the case of United States versus Dominguez, and established that it was not a requirement for the officers to do so. The officers are therefore not required to conduct the search in the plain view of the suspect or in a way most suitable to the suspect.
Apart from private property and individual’s body, consent search are widely applied in the searches involving motor vehicle drivers and their passengers. Based on the mobility and privacy that pertains to the content of the vehicles and contents, there are various restrictions and provisions of the consent law according to the fourth amendment which are generally contained in the automobile exception (Bloom, 2003). The provisions are aimed at protecting the evidence that is vulnerable and could be destroyed if left for some time, as well as the security of the law enforcing agent. Such provisions facilitate warrantless searches even without the consent of the person. Although it might appear to be infringing into the rights of the citizens, there are limits to which such warrantless searches could go and also considering that the level of privacy that a person expects from the car on a public street is not the same as that in a private apartment or residence.
In the cases of automobile stop and search, many issues emerge regarding the extent and limit of the consent. A typical case is in the State versus Ruscetta in Nevada, where the role of the searching officer in dismantling parts of the automobile was brought into the picture to challenge the evidence of marijuana obtained when the closet opened following the dismantling. Still the argument revolves around the completeness of the condition and the officer’s belief on the extent of the consent. In this case, although the consent of a reasonable person is considered not to include allowing an officer to remove screws and to open the enclosed panels, the officer cannot be considered to have gone beyond the mandate of the consent. Therefore, in this case, two points for consideration emerge.
That not every time an officer dismantles an automobile or part of it then the evidence obtained from the search becomes invalid before a court of law and that the extent of the search with respect to how far the officer may look or search, can be determined based on the totality of the search circumstances and depends on the opinion of the officer whether based on the circumstances, the consent extends to such areas (LaFave, 2004). It is important that citizens and officers as well, realize that for a stationary car such as a parked vehicle, there is enough time to obtain a warrant of search and still ensure that evidence is not destroyed and so cannot be considered to include exigent circumstances. In this case, a search without the warrant is only legal if the driver or the authority gives consent. Any search done contrary to this is unlawful and evidence obtained is invalidated.
When conducting a search, the officer does not need to have consent to search items that are in plain view and cannot be challenged based on lack of consent. However, the item in plain view depends on whether the officer had the rights to be in position, from where the item is considered to be in plain view (Holcomb, 2003). The search in this case must satisfy probable cause for it to become legal; otherwise, it can be easily challenged based on whether the officer had a probable cause to warrant the search. For vehicles, the law further requires that the officers conducts the search as an incident for arrest where the search should be conducted when the driver and the car are still at the point of arrest.
According to Bergman and Barrett (2003), it is important to note that consent laws do not apply to exigent situations where law enforcement agents have to act first in order to preserve evidence, and where they access a premise to deal with an emergency even if this might contravene an individual’s privacy. Citizens are not required to consent to body searches during lawful arrests since the search is reasonable and not considered a violation of the Fourth Amendment rights. The search is intended to disarm the suspect while taking him/her to the custody as well as preserving evidence while ensuring the safety of the arresting officer who is also a citizen.
Bennett (2008) explains that, based on the provisions and the exceptions of the Fourth Amendment, the right of the citizens to privacy are effectively limited. For example, where the opinion of the officer prevails as to whether the consent extends beyond the actually boundary as expected by the person giving the consent. It is also clear that such provision as in the case of searches on visitors to prison facilities and airport screening, do not allow limits to the search because once the consent is deemed to have been granted, it cannot be revoked. The personal privacy of the citizen, if probably the accused remembers a detail they may have preferred not to divulge, is not provided for. This should be considered in the interest of the vast citizenry as well as national interest, thus the right of an individual citizen is compromised.
In the case where the individual is not allowed to revoke their consent and when officers are not expected to identify themselves as law enforcement agents, it will give the agents undue advantage of obtaining information that the person would have considered very private and not willing to give (Moenssens, 2005). The law also makes it appear as floppy in cases where a third party could be considered genuine enough to give consent on matters affecting someone else who might have not consented. For example, a wife who consents to a search of the husband’s personal private closest, when the husband is a criminal and the wife is not aware. Certainly, the husband would have not wished to consent to the search.
A consent search is a controversial legal requirement that seeks to protect the rights of individuals to personal and property privacy against illegal searches. This leaves the law enforcers who are charged with responsibility to avert crimes in a dilemma, on how they can effectively avert crime without contravening the right of citizens especially when searches are required to expose evidences. As a result of the said controversies in the law, there should be better ways to define the boundaries and the circumstances of the consent, to enable law enforcement agents to clearly identify and stick to their boundaries in consent searches. This will ensure that the rights of the citizens are upheld while the there are equally no exit for criminals or suspects to escape after committing crime. The officers will equally be well protected and cases would be easy to determine and avoid suppression of evidence as attorneys tend to defend their clients based on the existing loopholes. Most of the existing provisions allow for regular disregard to the rights of the citizens.
On the other hand, more defined laws and boundaries of the application of the Fourth Amendment Act will ensure that most crime are promptly determined and reduce the number of crime that would otherwise occur. If it is in the opinion of the agent that the search will help avert a serious disaster as in the case of terrorism activities, then it is only a matter of humanity that it be done even contrary to the requirement of warrant and consent, though the difficulty will arise in trying to establish whether such an activity actually averted the purported crime. It is therefore necessary that despite all the possible risks, consent searches are carried while safeguarding the rights of the citizens.
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