In Florida v. Bostick, the Florida Supreme Court below had condemned the tactic explaining that such confrontations in close quarter’s amounts to a seizure requiring at least reasonable suspicion. Florida v. Bostick, 554 So.2d 1153 (Fla. 1989). The Supreme Court in Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L.Ed.2d 389 (1991), rejected the Florida court’s per se rule and held that the close quarters was only a factor to be considered in determining whether a person is seized or whether his consent was coerced. Without deciding the consent or seizure issues the Court compared Bostick with INS v. Delgado, 466 U.S. 210 (1984), where factory workers were held not seized although immigration agents had secured the exits to their factory and questioned workers about their citizenship. The test said the Court is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”6 Continuing with the same reasoning, the Court held in U.S. v. Drayton, 122 S.Ct. 2105, 153 L.Ed.2 242 (2002) that persons need not be told by police that they have the right to refuse to consent, in order for consent to be voluntary. It is enough if the individuals knew they could refuse to consent. See also Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002)[same].
Smarting from Justice Marshall’s poignant dissent7 the majority protests:
“This Court, as the dissent correctly observes, is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a ‘war on drugs.’ If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful.” Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L.Ed.2d 389 (1991) [citations omitted].
Where the Government claims that the search was based upon “consent” then the prosecution has the burden of establishing that such consent was knowing, intelligent, and voluntary. In addition, if a party has standing to complain of a search, she may also complain about the involuntary consent of another. The question is not actually whether one can complain of another’s involuntary consent, but is whether the police have authority to conduct the search. Invalid or coerced consent does not provide authority to search. Even the lack of one’s capacity to consent will render a search illegal with regard to another with standing to complain. See U.S. v. Elrod, 441 F.2d 252 (5th Cir. 1971)[Wright’s mental incapacity to consent renders the search invalid as to Elrod].
However, the trial court’s determination as to the voluntariness of that consent has been held to be reviewable under the “clearly erroneous” standard. U.S. v. Davis, 749 F.2d 292 (5th Cir. 1985). The Texas constitution similarly requires the state to show by clear and convincing evidence that consent is valid. Guevara
- State, 97 S.W.3d 579 (Tex. Crim. App. 2003).
Courts have held that no warning of a suspect’s right to refuse consent is required, and such failure is only a circumstance to be considered in determining its voluntariness.
See also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Haves v. Cody, 500 F.2d 1212 (7th Cir.), cert. denied, 419 U.S. 1058; U.S. v. Garcia, 496 F.2d 670 (5th Cir.), cert. denied, 420
U.S. 960 (1975); U.S. v. Drayton, 536 U.S. 194 (2002) [after boarding a passenger bus requesting consent searches of passengers’ luggage, police were not required to warn passengers of their right to deny consent]; U.S. v. Hearn and Taylor, 496 F.2d 236 (6th Cir.), cert. denied, 419 U.S. 1048 (1974); U.S. v. Cage, 494 F.2d 740 (10th Cir. 1974); U.S. v. Campbell, 516 F.2d 894 (1st Cir. 1975); U.S. v. Sebetich, 776 F.2d 412 (3d Cir. 1986)[specific findings required].
6 The Court further held that “an individual may decline an officer’s request without fearing prosecution. We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” [citations omitted].
7 The majority attempts to gloss over the violence that today’s decision does the Fourth Amendment with empty admonitions. ‘If th[e] [war on drugs] is to be fought,’ the majority intones, ‘those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime.’ The majority’s actions, however, speak louder than its words.” [citations omitted].
Permission to “look” in auto trunk does not extend consent to search packages and contents located therein.U.S. v. Gay, 774 F.2d 368, 1377 (10th Cir. 1985). However, a general consent to search one’s auto when the announced purpose of the search is for drugs, allows the scope of that consent to extend to the search of closed containers in the vehicle. Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).
“We think that it was objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs.” Florida v. Jimeno, (noting the majority focused on the fact that the purpose for the search was announced before the consent was given)8.
Reminding the Court of what the Fourth Amendment provides, Justices Stevens and Marshall dissented:
“The majority also argues that the police should not be required to secure specific consent to search a closed container, because ‘the community has a real interest in encouraging consent.’[citation omitted] I find this rationalization equally unsatisfactory. If anything, a rule that permits the police to construe a consent to search more broadly than it may have been intended would discourage individuals from consenting to searches of their cars. Apparently the majority’s real concern is that if the police were required to ask for additional consent to search a closed container found during the consensual search of an automobile, an individual who did not mean to authorize such additional searching would have an opportunity to say no. In essence, then, the majority is claiming that ‘the community has a real interest’ not in encouraging citizens to consent to investigatory efforts of their law enforcement agents, but rather in encouraging individuals to be duped by them. This is not the community that the Fourth Amendment contemplates.” Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. at 1806.
Even though the defendant consents to a search of his person, same did not extend to a search of his crotch as the consent given could not be seen as completely voluntary and knowing. U.S. v. Blake, 718 F. Supp. 925 (S.D. Fla. 1988) [court found the search to be unreasonable and outrageous].
CONSENT OF CUSTODIAL ARRESTEE
At least one court, however, has held that a Miranda warning is required to obtain a free and voluntary consent from a custodial arrestee. U.S. v. Verrusio, 742 F.2d 1077 (7th Cir. 1984) [relying on Florida v. Royer].
It has further been held that where a defendant is in custody, the Government’s burden of proving the voluntariness of consent is increased. U.S. v. Ballard, 573 F.2d 913, 916 (5th Cir. 1978); Hayes v. Cady, 500 F.2d
8 The dissent points out, “[a]ccording to the majority, it nonetheless is reasonable for a police officer to construe generalized consent to search an automobile for narcotics as extending to closed containers, because ‘[a] reasonable person my be expected to know that narcotics are generally carried in some form of a container.’ This is an interesting contention. By the same logic a person who consents to a search of the car from the driver’s seat could also be deemed to consent to a search of his person or indeed of his body cavities, since a reasonable person may be expected to know that drug couriers frequently store their contraband on their persons or in their body cavities. I suppose (and hope) that even the majority would reject this conclusion, for a person who consents to the search of his car for drugs certainly does not consent to a search of things other than his car for drugs. But this example illustrates that if there is a reason for not treating a closed container as something “other than” the car in which it sits, the reason cannot be based on intuitions about where people carry drugs.” Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). 1212 (7th Cir.), cert. denied, 419 U.S. 1058 (1974); U.S. v. Rothman, 492 F.2d 1260 (9th Cir. 1973); U.S. v. Mayes, 552 F.2d 732 (6th Cir. 1977).
See also U.S. v. Watson, 423 U.S. 411, 96 S.Ct. 820 (1976) [consent given while under valid arrest held voluntary on facts].
CONSENT FOLLOWING ILLEGAL ARREST
Some courts hold that illegal custody will vitiate any consent, unless the “taint” of the illegal arrest is attenuated.See, e.g., Luepa v. State, 561 S.W.2d 497, 498 (Tex.Crim.App. 1978).
“The detection, if unlawful may also have tainted appellant’s apparent voluntary consent to search the trunk”.
Luepa v. State, 561 S.W.2d at 498.
U.S. v. Ballard, 573 F.2d 913, 916 (5th Cir. 1978); McDougall v. State, 547 S.W.2d 40 (Tex.Cr.App. 1977); Armstrong v. State, 550 S.W.2d 25, 32 (Tex.Cr.App. 1976); Hinson v. State, 547 S.W.2d 277, 278-281 (Tex.Cr.App. 1977) [illegal stop vitiates any consent thereafter given].
Courts have applied an “Attenuation Test” analogous to that approved by the Supreme Court in confession cases such as Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1975) [confession]; Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1983).
See U.S. v. Robinson, 625 F.2d 1211 (5th Cir. 1980); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
The Supreme Court in Royer, without detailing any “attenuation test” simply cited Brown v. Illinois and Dunaway v. New York noting that “the information available …did not constitute probable cause to arrest; thus, if probable cause was required, the seizure was illegal and the resulting consent to search was invalid”. Florida v. Royer, 460 U.S. at 514. The central inquiry regarding the dissipation of the taint of an illegal arrest is whether any consent was given voluntarily. U.S. v. Cherry, 794 F.2d 201, 205 (5th Cir. 1986).
DEMONSTRATION OF ATTENUATION
Prosecution has burden of demonstrating that any consent was not tainted by illegal arrest. Brick v. State, 738 S.W.2d 676 (Tex.Crim.App. 1987) [“Clear and convincing evidence”].
Court held that a “taint” is “inherent” anytime consent follows illegal arrest, and prosecution must demonstrate that following factors dissipated any such inherent taint:
- Proximity of consent to the arrest,
- whether seizure brought about police observation of particular object which they sought consent to search,
- whether illegal seizure was “flagrant police misconduct,”
- whether consent was volunteered,
- whether arrestee was made aware of his right to decline consent, and
- whether the polices’ purpose was to obtain
Even an otherwise voluntary consent may be invalidated where it is obtained during detention after an illegal arrest as “fruit of the poisonous tree,” unless there is a showing that same is “sufficiently attenuated” so as not to constitute an exploitation of that initial illegality.
POISONED FRUIT DEEMED PALATABLE
The Supreme Court recently placed its stamp of permiture upon a custodial statement obtained from a suspect detained outside his home after he had been illegally arrested, without a warrant in violation of Payton v. New York. New York v. Harris, 495 U.S. 14, 109 L.Ed.2d 13, 110 S.Ct. 1640 (1990)[ the officers had probable cause to arrest the defendant and the warrant required of Payton was “designed to protect the physical integrity of the home” and not to protect suspects from use of statements made outside those premises].
“It is … evident, in light of Payton, that arresting Harris in his home without an arrest warrant violated the Fourth Amendment we decline to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime.”
U.S. v. Wilson, 569 F.2d 392 (5th Cir. 1978); U.S. v. Cherry, 794 F.2d 201, 206 (5th Cir. 1986); U.S. v. Edmondson, 791 F.2d 1512 (11th Cir. 1986).
Factors considered include:
- Giving of Miranda warnings, although mere giving of warnings will not suffice to “attenuate” Brown
- Illinois, 422 U.S. at 600; Dunaway v. New York, 442 U.S. at 397; Taylor v. Alabama, 457 U.S. at 319.
- Temporal proximity of arrest and
- Purposefulness or flagrancy of officer’s conduct.
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) [consent given after authority to search is claimed under invalid warrant held to constitute a “situation……………………………………………………………………. consistent with coercion”]; Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
CONSENT OBTAINED BY FRAUD OR TRICKERY
It has been held that the Government’s use of fraud or trickery did not vitiate an accused’s consent to search, but was simply one factor to be considered in the Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) [“totality of the circumstances” test].
U.S. v. Andrews, 746 F.2d 247, 248 (5th Cir. 1984), overruled on other grounds by U.S. v. Hurtado, 905 F.2d 74 (1990)[there that the defendant’s will had not been “overborne” by the Government’s misrepresentation].
Cf. U.S. v. Davis, 749 F.2d 292, 295-96 (5th Cir. 1985) [where in upholding the consent search the court looked to fact that there was no intent by law enforcement agents to deceive the accused].
See U.S. v. Mayes, 552 F.2d 732, 732 (6th Cir. 1977); U.S. v. Calhoun, 542 F.2d 1094 (9th Cir. 1976); U.S. v.
Taylor, 716 F.2d 701, 709 (9th Cir. 1983) [Terry stop not converted to arrest by reasonable use of handcuffs].
See U.S. v. Phillips, 664 F.2d 971, 1023-24 (5th Cir. 1981) [“most unusual” that consent at gunpoint could be voluntary]; U.S. v. Calhoun, 542 F.2d 1094, 1011 (9th Cir. 1976); U.S. v. Edmondson, 791 F.2d 1512 (11th Cir. 1986); U.S. v. Rouco, 765 F.2d 983 (11th Cir. 1985) [the “[f]act that defendant was placed face down in a parking lot with an agent’s gun to his head” did not render statement involuntary].
ATTACKING POLICE DOGS
U.S. v. Murphy, 763 F.2d 202 (6th Cir. 1985) [ “incriminating statements made by defendant while he was being apprehended by attacking police dog should have excluded at trial, even though … made in the complete absence of police misconduct or interrogation..”].
THIRD PARTY CONSENT
When a suspect declined consent to search of his property, police can wait until the suspect leaves in order to request consent from a co-tennant so long as the police do not actively participate in removing the suspect from the scene. U.S. v. Groves, 530 F.3d 506 (7th Cir. 2008)[police waited until a time they knew suspect would be away from home before seeking consent from co-tennant after being denied consent from suspect].
See Ingram v. State, 703 P.2d 415 (Alaska App. 1985) [consent of apartment dweller to search of premises extended to recent guest’s personal property found on the premises; guest assumes the risk of host’s consent]; Boyle v. State, 820 S.W.2d 122 (Tex.Crim.App. 1989), cert. denied, 503 U.S. 921 (1992). [owner of trucking company could validly consent to search of tractor trailer he owned since he retained “supervisory authority and control” over the defendant and the truck]; Welch v. State, 93 S.W.3d 50 (Tex.Crim.App. 2002)[passenger entrusted with vehicle after the arrest of the driver had sufficient authority to consent to the search of the same]; Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002)[building owner who gave defendant permission to stay in apartment after he was thrown out of a house and who entered apartment at will had authority to consent to its search].
APPARENT AUTHORITY TO CONSENT
The Supreme Court held that one consenting to the search of a residence need not have actual authority, so long as the police officer’s reliance upon same is objectively reasonable. Illinois v. Rodriguez, 497 U.S. 177, 111 L.Ed.2d 148, 110 S.Ct. 2793 (1990) [consent must “be judged against an objective standard: would the facts available to the officer at the moment …’warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises”].
In Texas a defendant might invalidate an otherwise valid search obtained with third party consent, if she can show that the police “intentionally bypassed” her to obtain the consent from another. Maxwell v. State,73 S.W.3d 278 (Tex.Crim.App. 2002).
See also, State v. Porting, 130 P.3d 1173 (Kan. 2006). [A newly paroled inmate’s ties to his intended residence were not strong enough to permit law enforcement officers to rely on his permission to conduct a warrantless search of the home. The occupants of the house to which the parolee planned to move had not “assumed the risk” that the parolee would permit others inside the residence]; United States v. Knights, 534 U.S. 112, (2001), [Warrantless search of probationer’s apartment by sheriff’s detective based on reasonable suspicion upheld where warrantless searches are a condition of probation].
TODDLER UNAUTHORIZED TO CONSENT TO SEARCH OF PARENT’S BEDROOM
Reynolds v. State, 781 S.W.2d 351, 46 Cr.L. 1152 (Tex.App.-Houston [1st Dist] 1989) [a “child of twelve is generally incapable of waiving his own rights. He is even less fit to surrender those of his mother”].
Georgia v. Randolph, 547 U.S. 103 (2006). [Law enforcement officers’ warrantless search of a shared home pursuant to the consent of one resident violates the Fourth Amendment rights of another resident who is present and expressly objects to the search. The Fourth Amendment’s prohibition of unreasonable searches and seizures forbade law enforcement officers to conduct a warrantless search of a home pursuant to the consent of the wife when the husband was present on the scene and objected to the search. The court’s ruling goes against the prevailing approach taken in the lower federal and state courts.]
U.S. v. Koehler, 790 F.2d 1256, 1259-60 (5th Cir. 1986) [a wife had the requisite “common authority” over family car by virtue of individual title, ultimate liability on purchase debt, and possession of keys at the time of the search. Husband’s exclusion of wife from possession before his arrest could not bar her from giving consent after his arrest].
United States v. Johnson, 656 F.3d 375 (6th Cir. 2011) [Husband separated from wife but temporarily residing in home can object to search over long-time resident’s consent, Randolph’s holding does not require residential con-tenants to have equal possessory interests in order to prevent warrantless search]
CONSENT OF MINORS
Atkins v. State, 331 S.E.2d 597 (Ga. 1985) [a child under the age of 18 can validly consent to a search of his parent’s home]. However, the court declined to establish a per se rule and concluded that the validity of the consent should be determined on a case-by-case basis.
CONSENT SOUGHT AFTER REQUEST FOR COUNSEL
[EDWARDS V. ARIZONA]
Under the Supreme Court’s analysis in Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), a request for counsel should terminate further questions, including requests for consent to search.
“[w]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police- initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused …having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. Edwards v. Arizona, 451 U.S. at 484.
See U.S. v. Cherry, 733 F.2d 1124, 1132, n. 15 (5th Cir. 1984) [Cherry I]; See also U.S. v. Yan, 1989 WL 2705 (S.D.N.Y. 1989) [unpublished case] [post-arrest consent after equivocal request for counsel violates Edwards v. Arizona]. But see U.S. v. Cherry, 794 F.2d 206, 207 (5th Cir. 1986) [Cherry III] [ based upon the Supreme Court’s decision in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed. 222 (1985), consent given after an unequivocal request for counsel is not per se invalid].
“This Court has previously ruled that the failure of the investigating agents, following Cherry’s equivocal request for counsel, to cease all interrogation until they could clarify Cherry’s request or provide him with counsel violated his rights under Miranda and Edwards….
The Court in Cherry I also held that Cherry’s consent to the second search that led to the discovery of the murder weapon was also fatally tainted by this violation….
Since Elstad makes clear that failure to give or carry out the obligation of Miranda warnings in and of itself is not a constitutional infringement, the test by which to evaluate whether a defendant’s underlying Fifth Amendment right against compelled testimony has been violated is still the ‘due process voluntariness test’….
This due process voluntariness inquiry applies to the case before us since the issue is the use of derivative evidence obtained through the exploitation of statements obtained in violation of Miranda.” U.S. v. Cherry, 794 F.2d at 207.
CONSENT TO SOBRIETY TEST VS. RIGHT TO COMMUNICATE WITH COUNSEL
See Sites v. State, 481 A.2d 192 (Md.App. 1984) [focusing the inquiry upon the Constitutional and statutory requirements that an arrestee be afforded a reasonable opportunity to consult with counsel].
“The Due Process Clause, as well as Article 24 of the Maryland Declaration of Rights, requires that a person under detention for drunk driving must, on request, be permitted a reasonable opportunity to communicate with counsel before submitting to a chemical sobriety test, as long as such attempted communications will not substantially interfere with the timely and efficacious administration of the testing process.
It is impossible to establish a bright line rule as to what constitutes a reasonable delay.” Sites v. State, 481 A.2d 192 (Md.App. 1984).
VIDEOTAPED ANSWERS TO POLICE SOBRIETY QUESTIONS
The Supreme Court has held that while the “slurred nature” of a suspect’s responses to police sobriety questions constitutes a physical trait, rather than being “testimonial or communicative”, questions and answers that have import because of their “content”, rather than the nature of their delivery, do invoke Fifth Amendment Miranda proscriptions. Pennsylvania v. Muniz, 496 U.S. 582, 110 L.Ed.2d 528, 110 S.Ct. 2638 (1990) [routine, focused and limited instructions as to how to take the test and whether the accused understood same did not constitute custodial interrogation]. See also State v. Spencer, 750 P.2d 147 (Or. 1988); Department of Transportation v. Doherty, 490 A.2d 481 (Pa. 1985) [that a citizen’s request for counsel, prior to consenting to a sobriety test, was not a “refusal” to take the test for license suspension purposes].
“Here, Mr. Doherty’s response does not evidence an attempt to debate, maneuver or negotiate the question of submission to the test. Morris Motor Vehicle Operator License Case, 218 Pa. Super. 347, 280 A.2d 658 (Pa. 1971). He did not condition his response on speaking with a lawyer but rather only inquired about the propriety of speaking to a lawyer before submitting to the breathalyzer test. The testing officer immediately recorded a refusal. We believe, however, that a refusal cannot be implied from a mere question. We, therefore, conclude that Mr. Doherty’s response did not amount to refusal.” Department of Transportation v. Doherty, 490 A.2d 481 (Pa. 1985).
See also Commonwealth v. O’Conner, 555 A.2d 873 (Pa. 1989) [DWI arrestee who asks for counsel must be told that right does not apply in connection with a request for breath test so suspect can make an informed choice]. But see McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App. 1986); Forte v. State, 707 S.W.2d 89 (Tex.Cr.App. 1986).