Wednesday, December 5, 2012

MBE Fast Fact: Consent to a Search (4th Amendment)

A heavily tested area within the subject of Criminal Procedure is the exceptions to the requirement of obtaining a warrant prior to conducting a search . One such exception is voluntarily and intelligently consenting to that search. It's important to remember for purposes of the MBE that the standard to apply is one of apparent consent. This means that any person with the apparent right to use or occupy the property may consent to a search, and any evidence found may be used against any of the owners or occupants of the property.

So, the relevant question is not whether the person who consented was an owner or occupant, but, rather, whether a person in the position of the officer executing the warrant would have reasonably believed that the person consenting was an owner or occupant of the property.

The question as to whether one person can consent to search another's property (for example, a parent consenting to the search of child's room) depends heavily on the facts provided; if the facts indicate that the child has taken extra precautions in retaining privacy over the property (for example, locking it up), then it's unlikely such consent to search that property will be valid.

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