Consent Search - Revoking Consent and Exceptions - Exceptions To Revoking Consent

Exceptions To Revoking Consent

Most courts have found the right to revoke consent is removed once a passenger has begun X-ray screening. In United States v. Herzbrun, the U.S. Court of Appeals for the Eleventh Circuit found Herzbrun “had no constitutional right to revoke his consent to a search of his bag once it entered the X-ray machine and he walked through the magnetometer.” And in United States v. Pulido-Baquerizo, the court explained that “ rule allowing a passenger to leave without a search after an inconclusive X-ray scan would encourage airline terrorism by providing a secure exit where detection was threatened.”

A similar argument is applied to searches of prison visitors in United States v. Spriggs. As long as a prison visitor is warned that all visitors will be searched and consents to the search, consent can not be revoked once the search has begun. Allowing consent to be withdrawn, the court reasoned, would encourage the smuggling of contraband into prisons by providing a secure escape to the smuggler.

During the course of a search an officer may develop reasonable suspicion or probable cause; once this has been developed the individual loses the right to revoke consent. However, in United States v. Fuentes, the court found the “ere refusal to consent to a stop or search does not give rise to reasonable suspicion or probable cause.”