Consent to Search Without a Warrant In Mississippi

The Fourth Amendment generally prohibits warrantless entry of a person's home, whether to make an arrest or to search for specific objects. Payton v. New York, 445 U.S. 573, 576, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). See Johnson v. United States, 333 U.S. 10, 17, 92 L. Ed. 436, 68 S. Ct. 367 (1948). This prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the premises. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). See Waldrop v. State, 544 So. 2d 834, 837 (Miss.1989). "Voluntary consent is a question of fact to be determined from surrounding circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent." 412 U.S. at 248-49. The Mississippi Supreme Court held that in order for consent to be voluntary, the defendant must be advised of his right not to consent. Penick v. State, 440 So. 2d 547, 551 (Miss. 1983). This decision was based in part on its interpretation and application of Section 23 of the Mississippi Constitution. However, in Jones v. State, 607 So. 2d 23, 28 (Miss. 1991), the supreme court used the federal standard to determine the validity of consent and held "that consent is not valid where the consenter is impaired or has diminished capacity; otherwise we apply the same test for valid consent as the federal standard and place the burden on the defendant to show impaired consent or some diminished capacity." Id. In short, the Penick knowledgeable consent requirement is only applicable in cases where the defendant specifically claims that his or her consent was not knowledgeable.