consent exception in Pennsylvania

2025“Exceptions to the warrant requirement include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception …, the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. Super. 2016) (quotation marks and citation omitted).

2025“Exceptions to the warrant requirement include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, . . . the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. Super. 2016) (some formatting altered and citation omitted).

2023These exceptions include “the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception, ... the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. Smith, 285 A.3d 328, 332 (Pa.Super. 2022) (citation omitted).

2023These exceptions include “the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception, ... the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. Smith, 285 A.3d 328, 332 (Pa.Super. 2022) (citation omitted).

2026Commonwealth v. Johnson, 188 A.3d 486, 489 (Pa. Super. 2018).

2025Commonwealth v. Johnson, 188 A.3d 486, 489 (Pa. Super. 2018) (citations and quotation marks omitted).

2018For the consent exception to apply, the consent must be voluntary.” Id. -3- J-S24024-18 In granting Stoudt’s motion, the trial court concluded that Stoudt did not voluntarily consent to the blood-draw, because at the time Stoudt underwent the blood-draw, the Motor Vehicle Sections had not yet been amended to cure the constitutional defects.

2018For the consent exception to apply, the consent must be voluntary." Id.

1999This claim is based upon the premise that our Supreme Court and two members of this Court have retracted from the Supreme Court’s decision in Commonwealth v. Hubbard, 472 Pa. 259 , 372 A.2d 687 (1977), wherein it adopted the consent standard articulated by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).

1999This claim is based upon the premise that our Supreme Court and two members of this Court have retracted from the Supreme Court’s decision in Commonwealth v. Hubbard, 472 Pa. 259 , 372 A.2d 687 (1977), wherein it adopted the consent standard articulated by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).

2026That is because the Commonwealth bore the burden of proving “forcible compulsion” or “threat of forcible compulsion” for purposes of 18 Pa.C.S. §3121(a)(1)-(2) (Rape) and 18 Pa.C.S. 10 As then-Chief Justice Saylor described it, “[a]pplication of [the doctrine of chances] depends upon the instinctive logical process that reasonably determines that unusual and abnormal events are unlikely to recur by chance.” Hicks, 156 A.3d at 1132 (Saylor, C.J., concurring) (internal quotations and citation omitted).

2026That is because the Commonwealth bore the burden of proving “forcible compulsion” or “threat of forcible compulsion” for purposes of 18 Pa.C.S. §3121(a)(1)-(2) (Rape) and 18 Pa.C.S. 10 As then-Chief Justice Saylor described it, “[a]pplication of [the doctrine of chances] depends upon the instinctive logical process that reasonably determines that unusual and abnormal events are unlikely to recur by chance.” Hicks, 156 A.3d at 1132 (Saylor, C.J., concurring) (internal quotations and citation omitted).

2019Id. [J-103-2018] [MO: Dougherty, J.] - 11 under the consent exception.

2017In addition, the Court held that the searches could not be justified under the consent exception to the warrant requirement, concluding that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” 8 Id. at 2186 .

2019For the consent exception to apply, the consent must be voluntary.” Id.

2019For the consent exception to apply, the consent must be voluntary.” Id.

2019Regarding consent, “evidence cannot be used to bolster a consent defense when the admitted purpose of the evidence is to prove that the victim acted in conformity with past behavior on the date in question.” Commonwealth v. Guy, 686 A.2d 397, 401 (Pa. Super. 1996).

2018For example, in Guy this Court held that a victim's past sexual conduct with a third-party was inadmissible in an attempt to bolster a consent defense because it attempted "to prove that the victim acted in conformity with past behavior on the date in question." Guy , 686 A.2d at 401 .

2026This Court has explained that “[s]uch exceptions include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception[,] the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. McMahon, 280 A.3d 1069, 1072 (Pa.Super. 2022) (cleaned up).

2023Commonwealth v. McMahon, 280 A.3d 1069, 1072 (Pa.Super. 2022).

2021See generally Commonwealth v. Basking, 970 A.2d 1181, 1184 (Pa. Super. 2009) (describing the doctrines of common authority and apparent authorities as “corollaries to the consent exception to the warrant requirement[]”).

2020See generally Commonwealth v. Basking, 970 A.2d 1181, 1184 (Pa. Super. 2009) (describing the doctrines of common authority and -9- J-A16036-20 apparent authorities as “corollaries to the consent exception to the warrant requirement[]”).

2024Commonwealth v. Randolph, 151 A.3d 170, 177 (Pa. Super. 2016) (citing Strickler, 757 A.2d at 898–99). -7- J-S07020-24 Here, the suppression court concluded that the Commonwealth proved Shearer’s consent was valid: [Shearer’s] consent was not a product of duress.

2018Thus, the test permits subjective considerations, as noted supra. See Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa. 2000) (maturity, sophistication, mental or - 15 - J-S10004-18 J-S10005-18 J-S10006-18 J-S10007-18 to the balance of the totality of the circumstances, and adopt its analysis as our own, which is summarized.

2020Kurtz, 172 A.3d at 1159 .

2018Commonwealth v. Kurtz, 172 A.3d 1153, 1159 (Pa.Super. 2017) (internal citations and quotation marks omitted).

2017The Court in Frame further explained Section 14’s exception from the consent requirement for adjournments of less than four days, noting that it allowed "flexibility in the administration of the legislative calendar” while "present[ing] a minimal threat to each house’s interest in the consideration by the other of its bills.” Id.

2015II, § 14; 101 Pa.Code § 7.24(a), As our Supreme Court rioted in Frame v. Sutherland, 459 Pa. 177 , 327 A.2d 623, 626 (1974), the constitutional scheme is "predicated on the assumption that adjournment may not be a unilateral act on the part of one of the houses of the General Assembly,” The exception to the consent requirement for adjournments lasting less than four days provides flexibility in the legislative calendar and “reflects the perception that adjournment's of less than four days present a minimal threat to each house's interest in the consideration by the other of its bills.” Id-at 6

2002The Supreme Court, in concluding that the grandparents “should be permitted to participate in the proceeding just as any other individual or individuals who seek to adopt a child[,]” stated “[a] child’s interests are best served when all those who demonstrate an interest in his or her welfare are allowed to be heard.” Id. 530 Pa. at 227 , 608 A.2d at 15 . ¶ 9 In analyzing the applicability of Hess to the instant case, we are cognizant that, to date, the exception to the consent requirement on the basis of 23 Pa.C.S.A. section 2713, as set forth in Hess, has been applied only in cases where gra

2002The Supreme Court, in concluding that the grandparents “should be permitted to participate in the proceeding just as any other individual or individuals who seek to adopt a child[,]” stated “[a] child’s interests are best served when all those who demonstrate an interest in his or her welfare are allowed to be heard.” Id. 530 Pa. at 227 , 608 A.2d at 15 . ¶ 9 In analyzing the applicability of Hess to the instant case, we are cognizant that, to date, the exception to the consent requirement on the basis of 23 Pa.C.S.A. section 2713, as set forth in Hess, has been applied only in cases where gra

2026In the Commonwealth’s view, “[e]vidence and argument in support of a consent defense should be excluded at trial . . . because consent is no defense to sexual offenses involving an unconscious victim.” Commonwealth’s Motion in Limine, 1/23/22, at 3, citing Commonwealth v. Brown, 727 A.2d 541, 544 (Pa. 1999) (holding that “consent is not a defense to the charges of [r]ape and/or IDSI with an unconscious person.”).

2024Smith, 285 A.3d at 332 . -6- J-S44028-23 “The plain view doctrine provides that evidence in plain view of the police can be seized without a warrant.” Commonwealth v. Luczki, 212 A.3d 530, 546 (Pa. Super. 2019) (citation omitted).

2024Commonwealth v. Randolph, 151 A.3d 170, 177 (Pa. Super. 2016) (citing Strickler, 757 A.2d at 898–99). -7- J-S07020-24 Here, the suppression court concluded that the Commonwealth proved Shearer’s consent was valid: [Shearer’s] consent was not a product of duress.

2023See Commonwealth v. Prince, 719 A.2d 1086, 1091 (Pa. Super. 1998) (addressing a claim of ineffective assistance for failing to request a consent as a defense instruction – raised for the first time on appeal – and holding that there was arguable merit to the claim and no reasonable basis for declining to request the instruction).