• Officer testifies citizen consented to be searched.
  • Citizen denies consenting to be searched.
  • There is no other evidence (that weighs net in favor of either party).


Whom does the judge believe?

Clarifying Discussion

from previous comments...


The testimony of the officer and the citizen would be more complete than just the officer saying "The defendant consented to be searched" and the defendant saying "I did not consent to be searched". Each would give a narrative of the situation that could be cross-examined. This would give the judge more information on which to base a judgement of trustworthiness.


Although everything you say is true, to put all that information into the question would miss the point. Which is: What is the standard of proof (for consent to searches)? And is their any "weight" advantage (in practice) for testimony from either side (all other factors being equal). For the purpose of this question, please assume all the other factors (the ones you mention and all the others) cancel out each other. Imagine both narratives agree except in one version the citizen gives consent. In the other he does not.


4 Answers 4


This is not a simple question. There are hundreds of page treatises on consent - explicit, implied, obtained by trickery, revoked, coerced by show, coerced by intimidation. If it ever was just a he said (s)he said situation, that certainly does not mean that the testimony of those two individuals are all that's considered to determine (1) that the prosecutor failed to meet it's burden; nor does it mean (2) that the consent was (legally) given. None of these answers (nor this answer) could possibly adequately address the complexity of the analysis a court will endeavor to undertake when evidence is the result of a search that was alleged to be consensual. The court will look to the totality of the circumstances to make this determination.

What is correct is that this is a question of law for a judge, and not a question of fact for a jury.

The clarifying comments (somewhat) allude to the depth of the inquiry. What is a complete misnomer is that there is one standard or burden, because they can shift based on the circumstances and the arguments made. It is always going to undertake a complete analysis of the entirety of the circumstances and never just the testimony of cop vs. suspect.

The what, where, who and when of the search are also really important and will always impact the ruling. Was it a car? Rules as to vehicular searches are different depending on the circumstances. Who agreed to the search - a child? A roommate? A spouse or domestic partner? Different rules apply to all these situations. What was searched? Was it a house? A hotel room? Rules apply to threshold entry. If a dwelling and the defendant did not consent, how did they get in? Was the door broken? What was the scope of the search? Was it invasive or limited? Did it start with plain view evidence? Was it a search of person? At an airport? At customs? Were they already under x-ray analysis? Was Miranda issued? These and many other things matter....a lot!

It is almost never just the defendant saying that consent wasn't given (eg. police search because of consent then defendant denies consent) There is always intrinsic or extrinsic evidence to consider. Actual physical or circumstantial evidence. Witnesses to the search. Something.

Typically, what you see are cases where the scope of consent is broadened by the police without additional consent, (eg. defendant said police could look around living room and they opened up drawers or went into the kitchen), or coercion is argued, or most commonly, it is argued that although consent was given, it was involuntary. There are a million ways to argue these factors but nobody will ever believe the police searched on consent when it just blatantly never happened. They don't. They would sooner make up probable cause for a warrant, or claim that there was exigent circumstances than search based on consent that never occurred. Consent happens all the time. It is the most used type of search leading to arrest, because people just don't think they can say no. Testimony of the defendant alone is rarely going to be enough to overturn a search. There is always something more. The analysis is based on the totality of the circumstances....the court(s) have said this time and time again.

As the United States Supreme Court explained, “The standard for measuring the scope of a suspect’s consent (or if a suspect consented) under the Fourth Amendment is that of objective reasonableness - what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno (1991) 500 U.S. 248, 251

  • 5
    No not exactly. Rather I'm saying that the hypothetical isn't realistic. The law, and The evolution of these rules, is based on actual cases and you cannot apply them to facts that would never occur in a certain way
    – gracey209
    Commented Sep 10, 2015 at 18:39
  • 1
    Another fantastic answer! To clarify this seemingly key statement: "this is a question of law for a judge, and not a question of fact for a jury." Does that mean that this is all addressed before any "fruits of the search" are allowed into a trial?
    – feetwet
    Commented Sep 10, 2015 at 18:55
  • 1
    @feetwet Yeah, this would all happen on a motion to suppress, which would be long before trial. If the searched was suppressed, likely there would be no trial (on these very, very limited facts).
    – gracey209
    Commented Sep 10, 2015 at 19:36
  • "a question of law for a judge, and not a question of fact for a jury" - hmm... I don't see how this can be universally so. In some circumstances, the question of whether you consented may hinge entirely on a dispute about objective facts of what happened, not the law or interpretation of the facts. For instance, suppose the policeman says you said "feel free to search me, officer, I don't mind at all!" and you claim you said "I absolutely don't consent to any searches". Then whether you consented hinges solely on who is telling the truth, and there is simply no relevant "question of law".
    – Mark Amery
    Commented Jan 18 at 14:32
  • One of the other answers quotes Steele v. United States in which the question of the legality of a seizure is described by the Supreme Court as "a question of fact and law, for the court and not for the jury", which accords with my common sense objection above; the question of whether a search was legal (or consented too) clearly cannot possibly be one of pure law, since it (absolutely always) depends upon the facts of what actually happened in reality, and those may sometimes be disputed.
    – Mark Amery
    Commented Jan 18 at 14:41

The Supreme Court has said that "when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given".1

This needs to be "clear and convincing" proof.2

The "clear and convincing" standard is higher than simply "more likely than not" or "preponderance of the evidence".3 It has been equated with "highly probable".4

In your hypothetical, the prosecution failed to prove that it was more likely than not that consent was freely and voluntarily given. They are far from meeting the "clear and convincing" standard that is required. The evidence resulting from the search would be excluded.

I also recommend gracey209's answer, which explains why this hypothetical is not realistic, and describes many other factors that go into the determination of whether a search is reasonable -- the touchstone of the Fourth Amendment is reasonableness, not consent.

1. Bumper v. North Carolina 391 U.S. 543 (1968)

2. State v. Danby, 11 Ohio App. 3d 38 (1983): "Accordingly, a warrantless search based upon the consent of the defendant is valid if his consent is voluntarily given. [...] Furthermore, the degree of proof constitutionally required is proof by "clear and positive" evidence. [...] In construing the phrase "clear and positive" in terms of evidentiary proof, we observe that several courts have held that it is quantitatively equivalent to proof by clear and convincing evidence."

3. Calderon v. Thompson 523 U.S. 538 (1998)

4. Colorado v. New Mexico 467 U.S. 310 (1984): "Last Term, the Court made clear that Colorado's proof would be judged by a clear and convincing evidence standard. [... W]e thought a diversion of interstate water should be allowed only if Colorado could place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are highly probable."

  • 3
    In practice, what steps do police officers take to ensure that they need not rely merely on their own testimony to establish that a search was consented to? The standard procedure in fiction is to say, "do you mind if I look in your car, sir?", but presumably that's atrocious procedure if it enables the defendant to falsely testify, "I said no but the officer went ahead anyway" and that's the end of the case. Commented Sep 10, 2015 at 8:25
  • 3
    @Mowzer I would assume the most common procedure in place is the police dash cam and/or body cam recording the suspect giving consent. When they try to deny giving consent in court the officer can just play back the video.
    – DasBeasto
    Commented Sep 10, 2015 at 13:02
  • 2
    @steve dash cams, second officer on scene, contemporaneous report being filed, a history of complying when suspects fail to consent
    – user248
    Commented Sep 10, 2015 at 14:01
  • 1
    Many have you sign a consent form
    – gracey209
    Commented Sep 24, 2015 at 23:35
  • 2
    The case that is footnoted at 1, which deals with consent being freely given. Is born of a famous case where 4 white cops when to a rapists/murderers' house where they told his African American grandmother that they had a warrant. With that, she never objected. They had no such thing. They found the weapon used in the crime That is clearly not consent. The trial court sloppily said it was at a suppression hearing, because you can lie ( but not about having a warrant!), hence, the rule that consent must be freely given. It can't be freely given if under impression they have no right to deny.
    – gracey209
    Commented Sep 25, 2015 at 0:00

Whom does the judge believe?

The judge believes the more credible witness.

Weight of witness testimony is all about credibility. "There is no law on judging credibility. Judges and jurors receive guidelines and elementary observations in the form of stock instructions but are essentially free to decide for themselves." (Judging Credibility, by John Kane)

Here is a jury instruction from CT:

Police will be testifying in this case. You must determine the credibility of police officials in the same way and by the same standards as you would evaluate the testimony of any other witness. The testimony of a police official is entitled to no special or exclusive weight merely because it comes from a police official. You should recall (his/her) demeanor on the stand and manner of testifying, and weigh and balance it just as carefully as you would the testimony of any other witness. You should neither believe nor disbelieve the testimony of a police official just because (he/she) is a police official.

And a jury instruction about weight of testimony (page 11):

In evaluating the testimonial evidence, remember that you are not required to believe something to be a fact simply because a witness has stated it to be a fact and no one has contradicted what that witness said. If, in the light of all of the evidence, you believe that the witness is mistaken or has testified falsely or that he or she is proposing something that is inherently impossible or unworthy of belief, you may disregard that witness' testimony even in the absence of any contradictory evidence....

...just because one witness testifies on one side of an issue and one witness testifies on the other side does not necessarily mean that you must consider the evidence evenly balanced. If you feel that one of the witnesses was more credible than the other, for whatever reason, you may find that the weight of the evidence lies on the side of that witness.


In criminal cases juries do not decide consent:

...the question of the competency of the evidence... by reason of the legality or otherwise of its seizure was a question of fact and law for the court and not for the jury.

Steele v. United States, 267 U.S. 505, 45 S.Ct. 417, 69 L.Ed. 761 (1925)

see also Gila Valley, Globe Northern Railway Company v. John Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521 (1914)

Questions of the admissibility of evidence are for the determination of the court; and this is so whether its admission depend upon matter of law or upon matter of fact.

Judges make determinations on motions to suppress during pretrial motions (Fed. R. Crim. P. 12(b)(3)(C)) This "is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt." Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960) overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980)

There is a great old article arguing that juries should decide questions of consent based on the power of jury nullification. (A Case For Jury Determination Of Search And Seizure Law by Ronald J. Baciga) The argument goes something like this - a crime was committed in a bedroom, and during the course of the trial on the merits the jury found out that the reason the police knew about the crime was because a cop was peeping through the curtains. If the jury was so offended by the police activity they could acquit, thus nullifying the judges determination that a search was lawful. On the other hand, what usually happens is that the cop goes and gets a warrant, and all the jury hears about during the trial is the warrant because the judge decided before the trial on the merits that the chain of events leading to the warrant was lawful. (Incidentally, this is not a question of credibility but could easily be extended there.)

There is no indication of whether this question regards criminal or civil cases. Based on the order the facts are presented (cop goes first), I assumed criminal. But the facts could also apply to a civil case for deprivation of constitutional rights. In a § 1983 civil action the jury decides the issue of consent, and it's the plaintiff who must prove that the search was not voluntary or, said differently, that an asserted exception to the warrant requirement did not apply. Larez v. Holcomb, 16 F.3d 1513, 1517–18 (9th Cir.1994) The standard of proof is preponderance of the evidence. (according to the Model Civil Jury Instruction for the 9th Circuit - Washington State uses a similar instruction for fourth amendment cases) The model instruction also provides some factors for the jury to consider:

whether the consenting person was in custody;

whether officers’ guns were drawn;

whether the consenting person was told he or she had the right to refuse a request to search;

whether the consenting person was told he or she was free to leave;

whether Miranda warnings were given;

whether the consenting person was told a search warrant could be obtained;

any other circumstances applicable to the particular case.

  • Is admissibility of the search evidence something a jury gets to decide? I would expect the judge to hold a pretrial hearing and make a factual finding about consent based on his own credibility determinations. Commented Sep 10, 2015 at 15:43
  • @HenningMakholm: IMHO, the proper resolution for many such issues would be to allow the defense to argue the legitimacy of the search as a matter of fact for a jury to decide. Much of the complexity in case law is a result of needlessly turning factual issues into legal ones. A cop who knows he must convince twelve ordinary people that his conduct is "reasonable" is apt to be more scrupulous than one who has to convince a judge that his conduct satisfies the minimal requirements established in case law, but also knows how far the judge will let him push things.
    – supercat
    Commented Sep 10, 2015 at 16:31
  • @HenningMakholm: Although it may be difficult for a jury to "unsee" evidence that was gathered via illegitimate search, I would expect that a jury that was instructed that it should acquit a defendant who poses less danger to society than the people involved in the prosecution would probably be able to reach good decisions much of the time.
    – supercat
    Commented Sep 10, 2015 at 16:35
  • 1
    @supercat, it was my impression that this site is for answering questions about how the law and judicial system actually work, rather than for exchanging opinions about how they ought to work. The latter seems to be ill suited for the SE model. Commented Sep 10, 2015 at 16:54
  • @HenningMakholm: You asked whether the jury gets to evaluate admissibility. My response was meant to indicate that jurors should be responsible in many cases, but their power has been usurped; I neglected to make the last aspect clear.
    – supercat
    Commented Sep 10, 2015 at 18:19

The Legal burden of proof is a common law doctrine which can be summarised as "he who asserts must prove".

In the circumstances that you describe, the police officer must bring forward sufficient evidence to meet the required burden - as @nomenagentis has said (with citations!) this is a "clear and convincing" burden which ranks just below the "beyond reasonable doubt" burden required for a criminal conviction.

If the entire evidence of the officer is their assertion that "The defendant consented to be searched" then the defendant's counter-evidence of "No, I didn't" means that the burden has not been reached.

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