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The Scope of the Consent
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Chapter 16: Consent Searches:
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Express vs. Implied Consent

Express vs. Implied Consent:

A person's consent may be "express" or "implied."  (Torbet v. United Airlines, Inc. (9th Cir. 2002) 298 F.3rd 1087, 1089 (People v. Panah (2005) 35 Cal.4th 395, 466-467.)

Express Consent:  Answering in the affirmative when asked for consent to search is the most obvious example of an "express consent."

An "implied consent" exists when, considering the "totality of the circumstances," a reasonable person would have understood that he is agreeing to a search.  (United States v. Jenkins (4th Cir. 1993) 986 F.2nd 76, 79.)

Examples:

Upon submission to having one's x-rayed luggage (Torbet v. United Airlines, Inc., supra.) and/or by walking through a magnetometer (United States v. Aukai (9th Cir., 2007) 497 F.3rd 955.) at an airport. 

See "Warrantless Searches," "Airport Searches," above.

Upon entering a military base where signs are posted warning that persons on the base are subject to being searched.  (United States v. Ellis (5th Cir. 1977) 547 F.2nd 863, Naval base; United States v. Jenkins, supra; Morgan v. United States (9th Cir. 2003) 323 F.3rd 776.)

Consent is implied by the totality of all the circumstances.  For instance, in the case of a military base, one impliedly consents to the search of his or her vehicle when driving upon the base and noting:

  • The barbed-wire fence;
  • The security guards at the gate;
  • The sign warning of the possibility of search; and
  • A civilian's common-sense awareness of the nature of a military base.

(United States v. Jenkins, supra, at p. 78; Morgan v. United States, supra, at pp. 787-788.)

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The Scope of the Consent
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Chapter 16: Consent Searches:
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