conducting a house raid, owing to either the source of the information or its content, if no
evidence exists regarding the alleged conduct that gives rise to a well-founded suspicion.
58.
Another issue that should be evaluated is the possible exception to the prohibition
of house raids in the event of the “consent of the resident,” which is included in some
domestic laws. This situation merits greater attention because it evidently ignores the
unequal relationship between the citizen and the public agent, especially in this situation
in which the agent seeks to take a measures to restrict the guarantee of the inviolability
of the home.
59.
The lack of confidence in the consent of the resident is mentioned by the Supreme
Court of the United States in Amos v. United States (1921), 93 in which it was held that the
consent to enter a home without a warrant was not a waiver of the constitutional privilege
against unreasonable search and seizure. In another decision, the Supreme Court
established that the consent of the resident “must be unequivocal, specific and intelligently
given, uncontaminated by any duress or coercion” (United States v McCaleb 94).
60.
In the absence of a reasonable suspicion that the situation constitutes flagrante
delicto, such consent should not be considered arbitrarily to allow the house raid owing to
the fact that the citizen, within this unequal relationship with the public agent who
possesses authority and power, has permitted the agent to enter his home. It is worth
emphasizing that a raid without a warrant is only possible when there has been prior
substantiated verification that a crime is being committed, with specific and objective
evidence that, together with an analysis of proportionality, permits the action.
61.
This requirement cannot be excluded alleging the consent of the residents. The fact
is that the said consent, to be legally valid, must be voluntary and free of coercion. It is
evident, therefore, that, for the resident to allow entry into his home, no coercion by the
police authority is allowed.
62.
Although the possibility of expressly establishing this exception is not denied, even
with the safeguards described, consent, as in the case of flagrante delicto, also requires
subsequent careful judicial analysis. In this case, the judge must first verify the evidence
that the law enforcement agents had in order to be able to adopt this measure and then,
what evidence there is that the resident consented to the entry, freely and spontaneously.
In case of doubt, for example, if the versions of the agents and that of the resident differ,
the version should prevail of the person whose right was violated: the citizen. This is
because the State has the burden of proving that consent was truly free and voluntary. To
guarantee the lawfulness of the measure, the French Code of Criminal Procedure requires
express consent in a written statement by the interested party, as follows:
Article 76: Searches, home visits and the seizure of incriminating evidence or items
whose confiscation is established in article 131-2 of the Criminal Code may not be
carried out without the express consent of the person in whose home the operation
takes place.
This consent shall be recorded in a handwritten statement by the interested party or,
if he or she cannot write, it shall be noted in the record, as well as his or her consent. 95
63.
Nevertheless, even if an express declaration of consent exists, the State must prove
that this was given freely, and that there are no indications that it was obtained by
coercion. This requirement is fundamental to avoid arbitrariness and abuse of authority
when conducting a house raid.
93
Cf. Supreme Court of the United States. Amos v. US, 255 US 313 (1921), judgment of February 28, 2021.
94
US Court of Appeals. Sixth Circuit. US v. McCaleb. 552 f.2d 717 (1977), judgment of April 11, 1977.
95
French Code of Criminal Procedure, article 76.
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