The Journal of The DuPage County Bar Association

Back Issues > Vol. 10 (1997-98)

"Consensual" Searches and Seizures: Did "Yes" Really Mean "Yes"?
By Stephen A. Brundage

The criminal law practitioner should approach with caution issues involving searches and seizures where there is alleged to be client "consent." How many times have we heard the police officer say – "I asked the suspect if I could search his car and he said "yes"?

The issue of consent is not foreclosed simply because a police officer obtains "permission" to search a person or property. A closer examination is needed regarding the facts and circumstances before, during and after an individual says "yes." This article briefly explores and discusses the issue of "consent" as it relates to searches and seizures.

The Fourth (4th) Amendment of the United States Constitution and Article I, Section 6 of the Illinois Constitution prohibits unreasonable searches and seizures. However, consensual searches are acceptable under the Fourth (4th) Amendment as long as a police officer is permitted to conduct a search. United States v. Maldonado, 38 F.3d 936, Cert. Den’d 116 S.Ct. 205, 133 L.Ed.2d 138, Rehearing Den’d 116 S.Ct. 586, 133 L.Ed.2d 508.

Whether or not a consent to search is given voluntarily is a question of fact to be determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854, 862-63 (1973); People v. Pertz, 242 Ill.App. 3d 864, 610 N.E.2d 1321, 183 Ill.Dec. 77 (2nd Dist. 1993).

If the issue of consent is raised at trial, the State has the burden of proof to show that the consent was in fact freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 20 L.Ed.2d 797, 802, 88 S.Ct. 1788, ___, (1968); People v. Taggart, 233 Ill.App.3d 530, 599 N.E.2d 501, 174 Ill.Dec. 717 (2nd Dist. 1992).

The state fails to meet their burden if they make the showing that an individual consented by merely acquiescing to a claim of lawful authority. Id., 391 U.S. 548-49, 20 L.Ed.2d 802, 88 S.Ct. ___ (1968), People v. Cardenas, 237 Ill.App. 3d 584, 604 N.E.2d 953, 178 Ill.Dec. 430 (3rd Dist. 1992).

The law of consensual searches is defined in the United States Supreme Court case of Bumper v. North Carolina. In Bumper , a defendant’s grandmother allowed the police to enter the defendant’s home after the police officers told the grandmother that they had a warrant to search the home when, in fact, they did not have a warrant. At the Motion to Suppress hearing in the trial court, the grandmother testified,

I was busy about my work, and they walked into the house and one of them walked up and said, ‘I have a search warrant to search your house,’ and I walked out and told them to come on in...He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word…

Bumper v. North Carolina, 391 U.S. at 546-7, 20 L.Ed.2d at 801, 88 S.Ct. at ___. The Bumper court rejected the claim that the grand-mother voluntarily consented to a search of the home, and held that consent cannot be given "only after the official conducting the search has asserted that he possesses a warrant." Id. at 548, 20 L.Ed.2d at 802, 88 S.Ct. at . The court further stated,

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion-albeit colorable lawful coercion. Where there is coercion there cannot be consent.

Bumper v. North Carolina, 391 U.S. at 550, 20 L.Ed.2d at 803, 88 S.Ct. at ___ (emphasis added).

Illinois courts apply the Bumper holding when addressing consent searches. In People v. Bailey, 273 Ill.App.3d 431, 652 N.E.2d 1084, 210 Ill.Dec. 430 (1st Dist. 1995), DEA Agents informed an individual that unless he allowed them to search his bag, they would obtain the help of a narcotics detector dog to sniff the bag and would detain the defendant to do so. The defendant was very nervous throughout the questioning and his hands were shaking and his "whole body was trembling." Id. at ___, 652 N.E.2d at 1085, 210 Ill.Dec. at ___. The Bailey court stated,

[The agent’s] threat that he intended to detain defendant’s bags falsely implied that he could do so legally; thus from that point on, defendant was constrained to labor under "an erroneous belief" that he could not protect his privacy by refusing to give consent... No matter how defendant responded to the threat, the agent was going to take his bags from him. Consequently, we conclude that the agent’s threat was ‘instinct with coercion;’ therefore defendant’s consent can in no way be characterized as voluntary. Id. at ___, 652 N.E.2d at 1088, 210 Ill.Dec. at ___.

The Court then applied a test, which examined whether or not the officers had actual grounds to carry out that the threat of detention and summoning of a narcotics detector dog and determined that the actual grounds to detain the defendant were lacking. Thus, the police officers violated the Fourth (4th) Amendment because the defendant did not give voluntary consent to search his bag.

Other Illinois cases yield similar results. In People v. Cardenas, 237 Ill.App.3d 584, 604 N.E.2d 953, 178 Ill.Dec. 430 (3rd Dist. 1992), police officers asked a defendant if they could search her vehicle for drugs at which time she responded, " ’ No, is that legal? ‘ ". The police officers informed her that it was legal and subsequently obtained written consent from the defendant. The court held that the defendant did not give voluntary consent because the police officer informed the defendant that the search the officer was about to make on the defendant’s car would have been legal, where in fact, it was not legal to conduct the search without consent.

The totality of the circumstances must be reviewed in consent searches. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854, 862-63 (1973). A significant factor for courts to examine while reviewing the totality of the circumstances in a consent search case is whether or not a defendant has initially refused to allow the police to conduct the search. People v. Graf, 265 Ill.App.3d 746, 638 N.E.2d 1181, 203 Ill.Dec. 55 (2nd Dist. 1994). See also, People v. Bailey 273 Ill.App.3d at ___, 652 N.E.2d at 1089, 210 Ill.Dec. at ___ (defendant initially refused to allow the officers to search his bag and the court stated "an initial refusal to consent is an important factor in assessing whether a subsequent consent is voluntary").

Another important factor in determining whether or not consent occurs is the emotional state of the defendant. In People v. Koniecki, 135 Ill.App.3d 394, 481 N.E.2d 973,90 Ill.Dec. 173 (2nd Dist. 1985), the court found that the defendant’s consent was involuntary because she was under emotional distress for several hours, and was confused, fearful, and emotional prior to giving alleged consent.

In summary, police officers cannot use the threat of search or seizure which is impermissible or illegal when they attempt to obtain consent to search. The validity of the grounds of the officer’s anticipated search must be examined. The court must look at the mental state of the consenting party and whether or not there had been prior refusals to consent. Criminal law practitioners must carefully investigate all surrounding facts and circumstances of a "consent" search and determine whether or not true permission to search exists.

Stephen A. Brundage is the Principal of Stephen A. Brundage and Associates, Wheaton. His practice is concentrated in criminal and civil litigation. He is a police commissioner for the Village of Winfield. He served as a Wheaton police officer for almost nine years.

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