Consent to Search

One of the well-known exceptions to the requirement of a search warrant before a search may be conducted is consent to the search. Valid consent may render an otherwise illegal search permissible. Commonwealth v. Cleckley, 738 A.2d 427, 429 (Pa. 1999); Commonwealth v. Gillespie, 821 A. 2d 1221, 1225 (Pa. 2003).

At any proceeding challenging a consent search, it is the Commowealth’s burden to prove consent. Commonwealth v. Cleckley, 738 A.2d 427, 429 (Pa. 1999).

One of the most important aspects of consent is that it must have been given voluntarily. Commonwealth v. Cleckley, 738 A.2d 427, 429 (Pa. 1999). Voluntariness is a question of fact to be determined from the totality of the circumstances. Commonwealth v. Cleckley, 738 A.2d 427, 430 (Pa. 1999). While knowledge of the right to refuse consent is a factor to consider in determining whether consent to search was voluntarily and knowingly given, it is not dispositive. Commonwealth v. Cleckley, 738 A.2d 427, 430 (Pa. 1999).

When evaluating the voluntariness of a defendant’s consent, the court considers: (1) the defendant’s custodial status; (2) the use of duress or coercive tactics by law-enforcement personnel; (3) the defendant’s knowledge of his or her right to refuse to consent; (4) the defendant’s education and intelligence; (5) the defendant’s belief that no incriminating evidence will be found; and (6) the extent and level of the defendant’s cooperation with the law-enforcement personnel. Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa. 1999); Commonwealth v. Gillespie, 821 A. 2d 1221, 1225 (Pa. 2003).

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