Consent to Search Forms
Should Officers Use Written Consent to Search Forms?
by Robert T. Thetford, JD
Consent searches are a legitimate means of obtaining evidence, but officers must recognize that since a consent search is a warrantless search, it is presumed illegal until the state can prove it to be Constitutionally legal, primarily through testimony of the officer obtaining the consent. The state does this by showing that the person giving consent had authority to consent to the search and that the person also voluntarily consented to the search. Schneckloth v. Bustamonte 412 U.S. 218 (1973). This article will concentrate on the voluntariness requirement and the desirability of obtaining the consent in writing.
Test for voluntariness
Schneckloth ruled that the test is whether or not, in obtaining the consent, the defendant's will was overborne. In other words, was this a free choice on the defendant's part? To make that determination, the court will consider the "totality of the circumstances." Schneckloth provided as examples the following circumstances, among others, which will be examined by the court to make the determination of whether the defendant's will is overborne:
the age of the accusedhis educationhis intelligencethe length of detentionthe repeated and prolonged nature of the questioningthe use of physical punishment such as the deprivation of food or sleepLater cases have required that the consent must be knowingly, intelligently, and freely given, Ex parte Wilson , 571 So. 2d 1251, 1255 (Ala. 1990), and that mere submission to police authority will not amount to consent, Martinez v. State , 624 So. 2d 711, 716 (Ala. Crim. App. 1993). Therefore, the State must prove that there was no express or implied duress or coercion exerted upon the person allegedly consenting to a search, Duncan v. State , 278 Ala. 145, 176 So. 2d 840 (1965). The standard is what the typical, reasonable person would have understood by the exchange between the officer and the suspect, Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803. , 114 L.Ed.2d 297 (1991).
There is no absolute requirement that the consent be obtained in writing; however, because having an executed, written consent form is one of the clearest evidences of voluntariness, most authorities strongly urge the use of the forms. One such authority states: "As the burden of proof is on the prosecution to show that the consent was given voluntarily, this consent should be obtained in writing when possible and should be witnessed by more than one person. If forms are used, they should be readily available at all times." Klotter and Kanovitz, Constitutional Law, Seventh Edition, Anderson Publishing Co., Cincinnati, Ohio, 1995.
Also note that an oral consent to search but a refusal to sign the form should not hurt the officer's case. In this instance the officer should execute the form by signing as a witness and writing on the form that "(subject's name) orally consented to the search of the above described property, but declined to sign the Consent to Search Form." The form should then be admissible with the proper predication and should substantially support the officer's testimony that the consent was obtained voluntarily.
If forms are not used by your department, consider obtaining a tape recording of the consent. Many Alabama departments are beginning to use this technique and it is acceptable as long as the tape does not malfunction and the chain of custody for the tape is strictly followed. Of course, a video recording is, in most instances, the most acceptable evidence assuming that the officer carefully words his/her request for consent.
Conclusion
The use of the forms is not a legal requirement, but is a matter of proof. We are living in times where the police officer's word, which once was accepted as truth merely because of the position, no longer enjoys that status. The fact that the witness is employed as a law enforcement officer does not necessarily cloak the officer with a mantle of believability. For this reason, officers need an edge. One way to obtain this edge in the courtroom is to produce written evidence of the subject's consent. This often can make the difference between winning and losing a case.
Form Content
Because consent forms are not the same as Miranda forms, which have to contain substantially uniform wording, they vary widely in content. In a recent case, REL: 04/03/98 SMITH v STATE 6 ALW 47-17 (CR-95-0093) Ronald Bert Smith, Jr. v. State, the Alabama Court of Criminal Appeals provided an example of a consent form admitted without objection (form edited to be non case/department specific):
I, _____________________, having been informed of my Constitutional right not to have a search made of the
premises hereinafter mentioned without a search warrant and of my right to refuse consent to such a search,
hereby authorize Officers ____________________ and ________________ of the City of _____________,
State of Alabama, to conduct a complete search of __________________________________________.
These officers are authorized by me to take from this location any property which they may desire. This written permission is being given by me to the above-mentioned officers voluntarily and without threats or promises of any kind.
Dated, signed and witnessed
***************
If this form seems too restrictive, a more simple but accepted form used by some agencies is:
I, ________________, have been requested by Officer(s) _______________ and ________________
(print name)
of the ________________________ Police Department to permit a thorough search of the following area:
I have been advised of my right to refuse consent; I give this permission voluntarily; and I authorize the above named officer(s) to take any items determined to be related to their investigation.
________________
Signature
________________
Witness
________________
Witness
________________
Date