What are some characteristics the courts use to determine the voluntariness of consent to a search?

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There are a number of characteristics or factors that a court will look at when determining if a suspect voluntarily consented to a search.  They include:

  • Whether the person was in custody at the time.  If a suspect is free to leave at any time, the court is more likely to find that the consent was voluntary.  If the suspect is under arrest, particularly if the arrest has included the use of physical force, the consent is less likely to be found voluntary.
  • The background of the consenter.  The court will try to determine if the person could have known what they were doing when they consented.  A court is likely to find that someone who has been arrested many times already "knew the ropes" and would understand what they were consenting to.  By contrast, a court might be likely to think that a young person who has never had any contact with the law did not understand what they were doing.
  • Whether deception was used.  The more officers deceive a suspect in order to get consent, the more likely the court is to find that the consent was not voluntary.
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