Definition of Consent
Consent is an agreement for a certain course of conduct to take place. For consent to a search to be valid, the consent given by the accused must be freely and voluntarily given. State v. Burnett, 536 So. 2d 375 (Fla. 2d DCA 1988); Chu v. State, 521 So. 2d 330, 332 (Fla. 4th DCA 1988). Consent that is the product of coercion (explicit or implicit), or that is the product of threats, force, intimidation, misrepresentations, or other improper police conduct is constitutionally invalid, and any evidence discovered as a consequence of such conduct may be suppressed and excluded from evidence. State v. Petion, 992 So. 2d 889 (Fla. 2d DCA 2008); I.R.C. v. State, 968 So. 2d 583 (Fla. 2d DCA 2007); Florida v. Bostick, 501 U.S. 429 (1991).
Where consent is alleged to be invalid due to threats, coercion, misrepresentation, or other improper law enforcement conduct, the totality of the circumstances must be considered in determining whether the consent was in fact voluntary. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Luna-Martinez v. State, 984 So. 2d 592 (Fla. 2d DCA 2008); I.R.C. v. State, 968 So. 2d 583 (Fla. 2d DCA 2007). The court must further determine whether police conduct would have communicated to a reasonable person that he or she was not free to decline the officer’s request (or otherwise terminate the encounter), and whether the accused was in a vulnerable subjective state, or exposed to subtly coercive police questioning. See DeLeon v. State, 700 So. 2d 718 (Fla. 2d DCA 1997); Luna-Martinez v. State, 984 So. 2d 592 (Fla. 2d DCA 2008); I.R.C. v. State, 968 So. 2d 583 (Fla. 2d DCA 2007).
Factors to Determine Whether Consent Was Voluntary
Florida appellate decisions have identified numerous factors that may be taken into account when determining whether consent was obtained through coercion or otherwise rendered involuntary. These factors may include the following:
- The number of officers present. McDonnell v. State, 981 So. 2d 585 (Fla. 1st DCA 2008);
- Detaining a defendant for a prolonged time period. Nelson v. State, 376 So. 2d 459 (Fla. 1st DCA 1979);
- A statement that the defendant will be released if consent is given to the search. Horvitz v. State, 433 So. 2d 545 (Fla. 4th DCA 1983);
- Detaining an accused and making repeated requests for consent. Seuss v. State, 370 So.2d 1203 (Fla. 1st DCA 1979); Nelson v. State, 376 So.2d 459 (Fla. 1st DCA 1979);
- Threats to obtain a search warrant, especially if there is an inadequate legal basis to seek a warrant. Leslie v. State, 685 So. 2d 1346 (Fla. 2d DCA 1996);
- Misstatements of the law or misrepresentations as to the authority of officers to conduct a search; State v. Slaney, 653 So. 2d 422, 430 (Fla. 3d DCA 1995); State v. Polak, 598 So. 2d 150, 153-154 (Fla. 1st DCA 1992); State v. Casal, 410 So. 2d 152 (Fla. 1982);
- False promises of leniency or non-prosecution. Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977) (confession induced by promises of leniency was invalid); State v. Favaloro, 424 So.2d 47 (Fla. 3d DCA 1982) (an implied promise that the defendant would not be prosecuted);
- Officers making it clear to a citizen that he or she is the suspect in a criminal investigation. McDonnell v. State, 981 So. 2d 585 (Fla. 1st DCA 2008);
- Other improper inducements- Frazier v. State, 107 So.2d 16 (Fla.1958) (confessions must be excluded if obtained by declarations calculated to delude defendant as to his true position); Foreman v. State, 400 So.2d 1047 (Fla. 1st DCA 1981) (officer’s statement that the victim was inclined not to prosecute if property were returned clearly constitutes an implied promise calculated to induce a confession); Hawthorne v. State, 377 So.2d 780 (Fla. 1st DCA 1979) (confession invalid where officer told defendant her giving a statement would eliminate need for further harsh questioning of separately held children.