Consent to Search under Threat of Search Warrant

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To be valid, consent to search must be voluntary. Is consent voluntary when given after an officer thrreatens to obtain a search warrant if consent is withheld?

Generally, yes. See State v. Kuegel, 195 N.C. App. 310 (2009) (consent to search was given voluntarily even though officer said that if consent was denied he “would leave two detectives at the residence and apply for a search warrant”); State v. Fincher, 309 N.C. 1 (1983) (the defendant consented voluntarily where he “was told that although he did not have to give permission to search, if he refused the officers would obtain a search warrant and conduct a search”); United States v. Comstock, 531 F.3d 667 (8th Cir. 2008) (finding that under the totality of the circumstances, the defendant voluntarily consented even though “the officers apparently stated that if [he] refused to consent to the search they would obtain a search warrant, during which time [he] would continue to be detained in handcuffs for an additional two hours”); United States v. Garcia, 890 F.2d 355 (11th Cir. 1989) (“The agents simply told Garcia that they would secure the house and attempt to obtain a search warrant if he refused consent. We find nothing in this statement which would indicate that the agents were trying to do anything more than lawfully request Garcia’s permission to search.”).

Of course, voluntariness is determined under the totality of the circumstances, and there is some out-of-state authority suggesting that a threat to obtain a search warrant is a factor weighing against voluntariness, even if it is not alone sufficient to tip the scales. United States v. Kim, 25 F.3d 1426 (9th Cir. 1994) (when “officers claim[] that they could obtain a search warrant,” this is a factor that “militate[s] against . . . voluntariness”). This may be especially true if the officer making the threat has no basis for obtaining a warrant. United States v. White, 979 F.2d 539 (7th Cir.1992) (“Baseless threats to obtain a search warrant may render consent involuntary. When the expressed intention to obtain a warrant is genuine, however, and not merely a pretext to induce submission, it does not vitiate consent.”).

Of course, if an officer claims that he already has a search warrant, when in fact he does not, the situation is different. Bumper v. North Carolina, 391 U.S. 543 (1968), holds that the state’s obligation of proving voluntariness of consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority,” as when “consent” is given only after an officer falsely claims to have a warrant.

One comment on “Consent to Search under Threat of Search Warrant

  1. I’ve also seen US v. Boukater, 409 F.2d 537 (5th Cir. 1969) (no coercion where police say they will “attempt” to get a warrant, but coercion possible if police say they “will obtain” a warrant) and US v. Faruolo, 506 F.2d 490 (2nd Cir. 1974) (concurrence) (when police say they will obtain a warrant, they “confront the [consentor] with a choice that totally obliterates the important protective function of the warrant-issuing process.”

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