Consent to Search…

As I have noted in prior posts, the Fourth Amendment to the United States Constitution and Article 1, §9 of the Texas Constitution prohibit unreasonable searches and seizures by law enforcement officers. Hayes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App. 1971); Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim. App. 1976).

However, the protections afforded by these constitutional guarantees may be waived.

One noted exception to the requirement of either a search warrant or probable cause is a search that is conducted pursuant to consent. Before the consent is deemed effective, the prosecution must prove by clear and convincing evidence that the consent was freely and voluntarily given. The burden to prove by clear and convincing evidence that consent was freely and voluntarily given requires the prosecution to show the consent given was positive and unequivocal and there must not be any duress or coercion, actual or implied. The question of whether consent was voluntary is a question of fact to be determined from the totality of all the circumstance surrounding the giving of the consent to search. See Meeks v. State, 692 S.W.2d 504, 508-509 (Tex.Crim.App. 1985, en banc); State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997, en banc); and Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000).