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SENSITIVE Manl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1 consent of another. Thus, the joint tenant in an apartment may consent to a search of all commonly posséssed areas and things within the premises, such as the bathroom, kitchen, linen closet, china cabinet, but may not consent to the search of a bedroom or closet or briefcase possessed exclusively by the other tenant. A consent search should not be undertaken where both joint possessors are present, and one objects to the search. The rules relating to joint possession apply in a wide variety of relationships; e.g., husband and wife, paramours, business partners, confederates in crime. (2) As a general rule, parents may consent to the search of a family dwelling directed against children residing therein and being supported by the parents. On the other hand, since the Fourth Amendment protection belongs to the parents, children may not relinquish the parents’ rights by consenting to a search of the family home directed against them. An employer may be barred from permitting a search of personal property reserved for the exclusive use of an employee. Thus, by terms of an employment contract, an understanding of the parties, or by accepted custom and practice, an employee might acquire a reasonable expectation of privacy in his/her desk or locker or toolbox, and his/her employer would not be empowered to permit a search thereof. The capacity of an employee or agent to permit the search of business premises depends upon the authority given him/her by his/her employer or principal. A Bureau Agent seeking consent to search business premises, in the absence of the resident manager, should obtain consent from the highest ranking official available. While a search warrant is preferred, business records may be searched by consent. Such consent should be obtained from the records' custodian or resident official in charge. *ekEEEDtes 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls: |5-4.5| Voluntariness | (Formerly 5~4.4) | The critical issue in any consent search is whether the consent 1s voluntary; that is, whether it is the result of a free and unconstrained choice. It is the government's burden to prove the consent was not coerced. Agents, therefore, should avoid any actions or statements likely to elicit submission to their authority rather than a free choice. No single criterion is used to determine voluntariness, but rather the sum total of surrounding circumstances --- such considerations as the number of Agents present, the time of search, the manner of request, the display of weapons, the physical or mental condition of the consenter. Formal custody alone will not invalidate a consent. Thus, a person under arrest may give permission to search his/her house, car, or other property. Use of physical force or threats, however, will render a consent involuntary. Likewise, fraud, deceit, or misrepresentation will taint the consent. But a consent to enter, obtained by such means in an undercover operation, is proper. SENSITIVE a Printed: 08/20/2003 06:43:34 Page 19