Consent to Search

What does it mean?

Consent to search occurs when a person allows the police or government authority to search his person, his car, his home, or some area where he has a reasonable expectation of privacy. Where a person has a reasonable expectation of privacy in the thing searched the police need something in order to carry out the search. In other sections we’ve talked about other ways police can carry out the search. For example if there is probable cause, or if there is exigent circumstances.

Consent to search is another way that police can execute a search. According to the 4th District Court of Appeals consent to search requires the state to carry the “burden of proving that the necessary consent was obtained and that is was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” See E.J. v State, 40 So.3d 922 (Fla. 4th DCA 2010).


What is the difference between consent to search and acquiescence to authority?

Consent to search occurs where a person knows that they can refuse the search, and they freely allow the search to occur anyway. However, acquiescence to authority shows a person who appears to consent to search, but the consent is based on a lack of knowledge of rights or expectations of what they think the police are allowed to do. The difference between consent to search and acquiescence to authority is slight. However when the court finds that the consent was not freely made, but instead acquiescence to authority, then the search is unlawful and the evidence should be suppressed.

Case-Law Example

Let’s look at the E.J. v. State case, cited above. In E.J. the Defendant was pulled over. The police officer asked the Defendant to step out of the car. The Officer did not suspect E.J. to be dangerous or armed but asked if E.J. had anything on her that they should be aware of. The Defendant indicated no and turned around, placing her hands on top of the car, spreading her legs for a search. The deputy took that to mean consent to search and searched the Defendant, finding unlawful contraband. The 4th District Court of Appeals stated that this was not consent to search, but instead acquiescence to authority. The Court explained that determining consent to search requires looking at the totality of the circumstances.

Relevant inquiries are experience with the criminal justice system, age of the Defendant, circumstances surrounding the consent, etc. In E.J. the Court emphasized several things when finding that this was acquiescence to authority and not a valid consent to search: Young Age of Defendant, Inexperience of Defendant, Defendant’s behavior mimicked what the driver of vehicle was forced to do moments prior. In Sum, the Court found that the Defendant did not know her rights and thus she did not consent to search. Therefore the evidence should be suppressed.

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