A person may consent to giving a DNA sample. An individual’s consent negates the need to acquire a warrant [Zap v. United States, 328 U.S. 624; 66 S. Ct. 1277; 90 L Ed. 1477 (1946)]. Note that the consent must be voluntary. In Schneckloth v. Bustamonte, 412 U.S. 218; 93 S. Ct. 2041; 36 L. Ed. 2d 854 (1973), the Court applied a general voluntariness test and stated law enforcement need not warn a suspect of the “right to refuse” to consent to a search. If the suspect is not coerced, consent has generally been deemed lawful. Conversely, any unreasonable force, threats, and deceit on the part of law enforcement may lead to a finding of involuntariness and consequent exclusion of evidence. Coercion negates consent [Bumper v. North Carolina;391 U.S. 543; 88 S. Ct. 1788; 20 L. Ed. 2d 797(1968)].

A better practice is to have law enforcement, if possible, obtain written consent from the suspect; however, there is no constitutional requirement to do so. It is also a better practice for law enforcement officers to explain the scope of the search to the suspect. Consent will be deemed lawful as long as the scope of the search is explained and there has been no coercion. Florida v. Jimeno, 500 U.S. 248; 111 S. Ct. 1801; 114 L. Ed. 2d 297 (1991).

Practice Point - Consent

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