Asking Suspect in Custody for Consent to Search

My name is Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training. This question comes from officer in Kansas.

“My question is, if you place a person under arrest, let’s say for driving while suspended, can you ask them while they are in custody for consent to search the vehicle?”
The answer is that you can; you can ask for consent.

Now, we do know that getting consent from a person who is in custody, of course is going to be more difficult and requires more articulation than if the person was not in custody. The reason why is that being in custody, of course, is a little bit more coercive than when a person is free to leave. But it’s not strictly prohibited.

Here is a US Supreme Court case on it, US versus Watson, 1976. “The fact of custody alone has never been enough in itself to demonstrate a coerced confession, or consent to search. Similarly, the absence of proof that the defendant knew he could withhold this consent, though it may be a factor in the overall judgment, is not to be given controlling significance.”

The courts would like you to let them know that they have a right to refuse and some states require that, like New Jersey, or Colorado, but most states do not. It’s just part of a totality of circumstances.

The test that we use for whether or not a consent has been freely and voluntarily given is based on the totality of the circumstances. So we look at Ohio versus Robinette, 1996. It says, “And just as it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning, so too, would it be unrealistic to require officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary. The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all of the circumstances. So there’s your your constitutional law.

If you’re going to ask for a person’s consent to search if they are in custody, here are some pro tips. Obviously, you want to be conversational, be polite, be professional. Allow them to watch you search so that if they have a problem with that, they can revoke or they can terminate or they can modify. Don’t have officers surrounding them. Of course, don’t have any hands on your weapons when you’re talking to these people. Let them know that they have a right to refuse. These are all things that you can do, but it can be done.

There’s your answer. I hope it helps. Have a good day and stay safe.