Suppose an officer is investigating a report of drug sales at a home. The officer sends an informant in to make a controlled buy from the suspected dealer. The informant comes out of the house with drugs and a report that the dealer has a large additional quantity of illicit substances remaining in the house. The officer decides that it would be a good time to bust the dealer, so the officer approaches the home, knocks on the door, and the dealer answers. The officer explains the situation and says, “I’m asking for consent to search your house. If you don’t consent, I’ll go apply for a search warrant because I think I have probable cause. So, can I search?” The dealer says yes, but later argues that his consent was not voluntary and that he merely acquiesced given the threat of the warrant. What’s the law?
Variations on this scenario come up regularly. Sometimes the officer mentions the possibility of a search warrant right out of the gate. Other times an officer seeks consent and the suspect responds by asking what will happen if he or she declines, at which point the officer then says that he or she will seek a warrant. The Court of Appeals recently issued an opinion finding that an officer’s threat to seek a warrant generally does not undermine the voluntariness of a suspect’s consent.
Falsely representing that an officer has a warrant renders consent involuntary. Before we get to the recent decision, it’s good to remember Bumper v. North Carolina, 391 U.S. 543 (1968). In that case, officers approached a woman at her home and told her that they had a search warrant for the residence. She “told them to come on in,” as she was “satisfied” that they had a warrant. The state later disavowed any reliance on a warrant, seemingly because there was none. During the search, the officers found a gun that tied the woman’s grandson to a rape and shooting. Although our state supreme court held that the search was justified based on the woman’s consent, the Supreme Court of the United States found otherwise: “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. . . . Where there is coercion there cannot be consent.” Thus, the Court held that a false representation that an officer has a warrant renders consent involuntary.
Accurately representing that an officer will seek a warrant does not render consent involuntary. If an officer truthfully represents that he or she will apply for a warrant if consent is denied, that does not negate the voluntariness of a suspect’s consent. So held the court of appeals a few months ago in State v. Jordan, 282 N.C. App. 641 (2022). In Jordan, officers were investigating reports that the defendant was selling drugs out of the home he shared with his girlfriend. Officers stopped the couple for speeding one day as they drove away from the residence. There was marijuana in the car, and the officers decided to lay out the situation and ask for consent to search the house. Speaking to the girlfriend, an officer represented that he “felt like [the police] had probable cause to apply for a search warrant” and could apply for one, but that if she would consent, they could search the home based on that. She consented, and the search turned up drugs and a gun. Addressing on appeal whether her consent was voluntary, the court examined the totality of the circumstances and found that it was. As to the officer’s comments about the search warrant, the court distinguished Bumper, noting that the officers here “did not claim to presently have a search warrant” and “did not definitively represent . . . that police could obtain a search warrant based on the evidence they had,” merely saying that they “felt like” they had probable cause to “apply” for a warrant. Thus, the officer “merely gave . . . his opinion of the evidence – not an ultimatum.”
Jordan is in line with many other cases from other courts. See, e.g., United States v. Mumme, 985 F.3d 25 (1st Cir. 2021) (collecting cases and concluding that “that [an officer’s] statement to [a suspect] that he would seek a search warrant did not vitiate [the suspect’s] consent to enter his home and to seize his electronic devices”); United States v. Jones, 614 F.3d 423 (7th Cir. 2010) (although “baseless threats to obtain a search warrant” may render consent involuntary, that was not the case where officers “had a reasonable factual basis to believe that there was sufficient probable cause to obtain a warrant”); United States v. Larson, 978 F.2d 1021 (8th Cir. 1992) (stating that “[w]hen a person consents to a search after officers state they will attempt to obtain a warrant if the person does not consent, the consent is not necessarily coerced”; instead, “an officer’s threat to obtain a search warrant is a factor to be considered when examining the totality of the circumstances surrounding consent”; the court found consent in the case at bar to be voluntary); State v. Rathburn, 239 N.W.2d 253 (Neb. 1976) (“[W]here law enforcement officers indicate only that they will attempt to obtain or are getting a warrant such a statement cannot serve to vitiate an otherwise consensual search.”).
The devil is in the details. The specific words used by the officer are important, and these days, are likely to be recorded by an officer’s body-worn camera or on someone’s smartphone. A statement like “if you don’t consent, I will get a warrant” arguably suggests that the issuance of the warrant is a foregone conclusion, so the suspect may as well acquiesce. Officers are on firmer ground if they say that they “will apply for” or “will seek” a warrant, thereby acknowledging that the ultimate decision about whether the warrant will be issued belongs to someone else.
Officers also should avoid referencing warrants when they know that they are in no position to obtain one. If an officer lacks probable cause but nonetheless tries to bluff his or her way into obtaining consent to search by claiming that he or she will apply for a warrant if the suspect doesn’t consent, a court may find coercion. See McMorran v. State, 46 P.3d 81 (Nev. 2002) (although the court recognized that an officer with probable cause may properly inform a suspect that the officer will seek a warrant if the suspect refuses to consent, the court found consent to be involuntary where officers told a suspect that they would seek a warrant absent consent even though they “had not uncovered any evidence of wrongdoing” beyond an anonymous tip).
Conclusion. Although there may be some wrinkles and gray areas, the basic message of Jordan and the other cases cited above is clear. When an officer actually would seek a search warrant if a suspect declines to consent to a search, the officer may tell the suspect so without vitiating the voluntariness of any subsequent consent.