Who May Consent to Police Searches?

To consent to a police search, the person consenting must have the authority to consent to the search. Authority can be broken down into two categories: actual authority to consent and apparent authority to consent. These two general classifications are extremely important. If the person consenting to the search lacks both actual and apparent authority, then the consent is illegal. Any evidence seized by the police pursuant to the search may be excluded and suppressed from trial based on the 4th Amendment exclusionary rule.

Actual authority to consent means the person consenting has actual power to expose what would otherwise remain private. In other words, the police cannot ask a random person on the street for consent to search your belongings. Additionally, common authority to consent to a search may be provided by persons who have mutual use or control over the property to be searched.

If a person lacks actual authority to consent, the police may still rely upon a person’s apparent authority.  Apparent authority is the power of an agent to act on behalf of a principal. This power arises when someone infers from the agent’s conduct and presumes the principal granted power to the agent. If the police make reasonable inquiries of the agent operating on your behalf and develop a reasonable belief the agent was who they claimed to be, then evidence they collect while performing the search may be used in court, even if the evidence was collected under false pretenses.

However, if the person consenting lacked both actual and apparent authority to consent to a search, then evidence seized from the search may be suppressed under the 4th Amendment exclusionary rule. If you are charged in a criminal case and believe there are issues regarding authority to consent, make sure you discuss these issues with your criminal defense lawyer. A pre-trial motion to suppress may be the appropriate way to attack the admissibility of the evidence.

Gustitis law can help you navigate the complexities of the criminal justice system, including matters related to police searches. Steve Gustitis is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas with flexible hours to accommodate your schedule. He has more than 27 years of experience in the field of criminal law and criminal defense in Brazos County.