Review Us
  1. Mark Deniz has been a member of the California State bar for over 11 years.

    Mark is involved with the San Diego Bar Association serving on its legal panel.

    Due to his legal experience Mark Deniz has the privilege of serving on several attorney panels.

    Avvo Top Contributor 2015 DUI

    Mark Deniz is a top contributor on Avvo providing outstanding legal advice. Mark Deniz also serves on the Avvo Legal Panel. The only San Diego Criminal Defense attorney who is on the panel.

  2. Mark Deniz is a member of California DUI Lawyers Association.

    Nation's Premier | NACDA | Top Ten Ranking 2014

    Mark Deniz has been named one of The National Academy of Criminal Defense Attorneys “Top 10” Attorneys.

    Mark Deniz has been deemed by The Lead Counsel Rating for providing exceptional legal representation to individuals and businesses.

    The firm is a member of the better business bureau who ensures quality service for its clients.

  3. The National Trial Lawyers - Top 100 Trial Lawyers

    Mark Deniz has consistently been named one of the National Trial Lawyers Top 100 Trial Lawyers.

    Mark Deniz is a member of the prestigious National College for DUI defense and has completed its intensive summer session curriculum conducted at Harvard Law School.

    Mark Deniz has received AVVO’s prestigious Clients’ Choice award

    Avvo Rating 10.0 Superb Top Attorney DUI

    The prestigious legal rating service AVVO has consistently given Law Offices of Mark Deniz a "Superb" rating.

  4. Proudly Serving the Community Service 2003

    Mark Deniz has proudly served as a member of the California state bar since 2003.

    Mark Deniz has consistently been named one of the National Trial Lawyers Top 100 Trial Lawyers.

  1. Mark Deniz has been a member of the California State bar for over 11 years.

  2. Mark is involved with the San Diego Bar Association serving on its legal panel.

  3. Due to his legal experience Mark Deniz has the privilege of serving on several attorney panels.

  4. Avvo Top Contributor 2015 DUI

    Mark Deniz is a top contributor on Avvo providing outstanding legal advice. Mark Deniz also serves on the Avvo Legal Panel. The only San Diego Criminal Defense attorney who is on the panel.

  5. Mark Deniz is a member of California DUI Lawyers Association.

  6. Nation's Premier | NACDA | Top Ten Ranking 2014

    Mark Deniz has been named one of The National Academy of Criminal Defense Attorneys “Top 10” Attorneys.

  7. Mark Deniz has been deemed by The Lead Counsel Rating for providing exceptional legal representation to individuals and businesses.

  8. The firm is a member of the better business bureau who ensures quality service for its clients.

  9. The National Trial Lawyers - Top 100 Trial Lawyers

    Mark Deniz has consistently been named one of the National Trial Lawyers Top 100 Trial Lawyers.

  10. Mark Deniz is a member of the prestigious National College for DUI defense and has completed its intensive summer session curriculum conducted at Harvard Law School.

  11. Mark Deniz has received AVVO’s prestigious Clients’ Choice award

  12. Avvo Rating 10.0 Superb Top Attorney DUI

    The prestigious legal rating service AVVO has consistently given Law Offices of Mark Deniz a "Superb" rating.

  13. Proudly Serving the Community Service 2003

    Mark Deniz has proudly served as a member of the California state bar since 2003.

  14. Mark Deniz has consistently been named one of the National Trial Lawyers Top 100 Trial Lawyers.

Consent searches and San Diego DUI

The Law Office of Mark Deniz has the privilege of working with some of the best young legal minds in San Diego.  One of these persons is Alyssa Frazier.  Alyssa is a law student at Thomas Jefferson School of Law.  She is on the law review and one of the top of her class. She has an intense desire to help people.   She was invited to write on subjects that she comes across while working with the firm.

Today, she is writing about Consent searches and San Diego DUI


Consent
Searches and San Diego DUI

 You are driving down
the freeway when all of a sudden an officer puts on their siren and pulls you
over. When they get to the car they ask you what you have been doing, whether
you have been drinking, and where you are coming from. Then, the officer asks you
for consent to search your car. Do you have to give permission to search? The
answer is no. You do not have to give the officer permission to search your
car. However it may be to your benefit to let the officer search and rule out
whatever suspicion raised the officer’s curiosity. On the other hand, you are
giving the officer consent to search your vehicle, and could be held liable if
anything were to come up as the product of the search.

Will this still stop the officer from searching your car?
No. There are many other exceptions that allow for a warrantless search of a
vehicle: a search incident to a lawful arrest, inventory searches, or if the
officer has probable cause to search your vehicle. Thus, if an officer asks you
to search your car know your rights and determine whether you want to consent
to the search, but also know that the officer may still be able to search your
car even if you say no.

Schneckloth
v. Bustamonte

412
U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 8544(1973).

Opinion

*219 Mr. Justice STEWART delivered the opinion of the Court.

  • * *

While on routine patrol in Sunnyvale, California, at
approximately 2:40 in the morning, Police Officer James Rand stopped an
automobile when he observed that one headlight and its license plate light were
burned out. Six men were in the vehicle. Joe Alcala and the respondent, Robert
Bustamonte, were in the front seat with Joe Gonzales, the driver. Three older
men were seated in the rear. When, in response to the policeman’s question,
Gonzales could not produce a driver’s license, Officer Rand asked if any of the
other five had any evidence of identification. Only Alcala produced a license,
and he explained that the car was his brother’s. After the six occupants had
stepped out of the car at the officer’s request and after two additional
policemen had arrived, Officer Rand asked Alcala if he could search the car.
Alcala replied, ‘Sure, go ahead.’ Prior to the search no one was threatened
with arrest and, according to Officer Rand’s uncontradicted testimony, it ‘was
all very congenial at this time.’ Gonzales testified that Alcala actually
helped in the search of the car, by opening the trunk and glove compartment. In
Gonzales’ words: ‘(T)he police officer asked Joe (Alcala), he goes, ‘Does the
trunk open?’ And Joe said, ‘Yes.’ He went to the car and got the keys and
opened up the trunk.’ Wadded up under the left rear seat, the police officers
found three checks that had previously been stolen from a car wash.

The trial judge denied the motion to suppress, and the
checks in question were admitted in evidence at Bustamonte’s trial. On the
basis of this and other evidence he was convicted, and the California Court of
Appeal for the First Appellate District affirmed the conviction. *221 270
Cal.App.2d 648, 76 Cal.Rptr. 17. In agreeing that the search and seizure were
constitutionally valid, the appellate court applied the standard earlier
formulated by the Supreme Court of California in an opinion by then Justice
Traynor: ‘Whether in a particular case an apparent consent was in fact
voluntarily given or was in submission to an express or implied assertion of
authority, is a question of fact to be determined in the light of all the
circumstances.’ People v. Michael, 45
Cal.2d 751, 753, 290 P.2d 852, 854. The appellate court found that ‘(i)n the
instant case the prosecution met the necessary burden of showing consent . . .
since there were clearly circumstances from which the trial court could
ascertain that consent had been freely given without coercion or submission to
authority. Not only officer Rand, but Gonzales, the driver of the automobile,
testified that Alcala’s assent to the search of his brother’s automobile was
freely, even casually given. At the time of the request to search the
automobile the atmosphere, according to Rand, was ‘congenital’ and there has
been no discussion of any crime. As noted, Gonzales said Alcala even attempted
to aid in the search.’ **2045 270 Cal.App.2d, at 652, 76 Cal.Rptr., at 20. The
California Supreme Court denied review.

Thereafter, the respondent sought a writ of habeas corpus in
a federal district court. It was denied.3 On appeal, the Court of Appeals for
the Ninth Circuit, relying on its prior decisions in Cipres v. United States, 343 F.2d 95, and Schoepflin v. United States, 391 F.2d 390, set aside the District
Court’s order. 448 F.2d 699. The appellate court reasoned that a consent was a
waiver of a person’s Fourth and Fourteenth Amendment rights, and that the State
was under an obligation to demonstrate, *222 not only that the consent had been
uncoerced, but that it had been given with an understanding that it could be
freely and effectively withhold. Consent could not be found, the court held,
solely from the absence of coercion and a verbal expression of assent. Since
the District Court had not determined that Alcala had known that his consent
could have been withheld and that he could have refused to have his vehicle
searched, the Court of Appeals vacated the order denying the writ and remanded
the case for further proceedings. We granted certiorari to determine whether
the Fourth and Fourteenth Amendments require the showing thought necessary by
the Court of Appeals. 405 U.S. 953, 92 S.Ct. 1168, 31 L.Ed.2d 230.

II

It is important to make it clear at the outset what is not
involved in this case. The respondent concedes that a search conducted pursuant
to a valid consent is constitutionally permissible. In Katz v. United States, 389 U.S., at 358, 88 S.Ct., at 515, and more
recently in Vale v. Louisiana, 399
U.S. 30, 35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409, we recognized that a search
authorized by consent is wholly valid. See also Davis v. United States, 328 U.S., at 593—594, 66 S.Ct., at
1261—1262; Zap v. United States, 328
U.S., at 630, 66 S.Ct., at 1280.4 And similarly the State concedes that ‘(w)hen
a prosecutor seeks to rely upon consent to justify the lawfulness of a search,
he has the burden of proving that the consent was, in fact, freely and
voluntarily given.’ Bumper v. North
Carolina
, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797. See also Johnson v. United States, 333 U.S. 10,
68 S.Ct. 367, 92 L.Ed. 436; Amos v.
United States
, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.

*223 The precise question in this case, then, is what must
the prosecution prove to demonstrate that a consent was ‘voluntarily’ given. *

  • *

A

The most extensive judicial exposition of the meaning of
‘voluntariness’ has been developed in those cases in which **2046 the Court has
had to determine the ‘voluntariness’ of a defendant’s confession for purposes
of the Fourteenth Amendment. * * * It is to that body *224 of case law to which
we turn for initial guidance on the meaning of ‘voluntariness’ in the present
context. * * *

The significant fact about all of these decisions is that
none of them turned on the presence or absence of a single controlling
criterion; each reflected a careful scrutiny of all the surrounding
circumstances. See Miranda v. Arizona,
384 U.S. 436, 508, 86 S.Ct. 1602, 1645, 16 L.Ed.2d 694 (Harlan, J.,
dissenting); id., at 534—535, 86 S.Ct., at 1659—1660 (White, J., dissenting).
In none of them did the Court rule that the Due Process Clause required the
prosecution to prove as part of its *227 initial burden that the defendant knew
he had a right to refuse to answer the questions that were put. While the state
of the accused’s mind, and the failure of the police to advise the accused of
his rights, were certainly factors to be evaluated in assessing the
‘voluntariness’ of an accused’s responses, they were not in and of themselves determinative.
See, e.g., Davis v. North Carolina, supra; Haynes v. Washington, supra,
373 U.S., at 510—511, 83 S.Ct., at 1341—1342; Culombe v. Connecticut, supra,
367 U.S., at 610, 81 S.Ct., at 1883; Turner
v. Pennsylvania
, 338 U.S. 62, 64, 69 S.Ct. 1352, 93 L.Ed. 1810.

B

Similar considerations lead us to agree with the courts of
California that the question whether a consent to a **2048 search was in fact
‘voluntary’ or was the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of all the circumstances.
While knowledge of the right to refuse consent is one factor to be taken into
account, the government need not establish such knowledge as the sine qua non
of an effective consent. As with police questioning, two competing concerns
must be accommodated in determining the meaning of a ‘voluntary’ consent—the
legitimate need for such searches and the equally important requirement of
assuring the absence of coercion.

In situations where the police have some evidence of illicit
activity, but lack probable cause to arrest or search, a search authorized by a
valid consent may be the only means of obtaining important and reliable
evidence.9 In the present case for example, while the police had reason to stop
the car for traffic violations, the State does not contend that there was
probable cause to search the vehicle or that the search was incident to a valid
arrest *228 of any of the occupants. Yet, the search yielded tangible evidence
that served as a basis for a prosecution, and provided some assurance that
others, wholly innocent of the crime, were not mistakenly brought to trial. And
in those cases where there is probable cause to arrest or search, but where the
police lack a warrant, a consent search may still be valuable. If the search is
conducted and proves fruitless, that in itself may convince the police that an
arrest with its possible stigma and embarrassment is unnecessary, or that a far
more extensive search pursuant to a warrant is not justified. In short, a
search pursuant to consent may result in considerably less inconvenience for
the subject of the search, and, properly conducted, is a constitutionally
permissible and wholly legitimate aspect of effective police activity.

But the Fourth and Fourteenth Amendments require that a
consent not be coerced, by explicit or implicit means, by implied threat or
covert force. For, no matter how subtly the coercion was applied, the resulting
‘consent’ would be no more than a pretext for the unjustified police intrusion
against which the Fourth Amendment is directed. * * *  

The problem of reconciling the recognized legitimacy of
consent searches with the requirement that they be free from any aspect of
official coercion cannot be resolved by any infallible touchstone. To approve
such searches without the most careful scrutiny would sanction the possibility
of official coercion; to place artificial restrictions upon such searches would
jeopardize their basic validity. Just as was true with confessions, the
requirement of a ‘voluntary’ consent reflects a fair accommodation **2049 of
the constitutional requirements involved. In examining all the surrounding
circumstances to determine if in fact the consent to search was coerced,
account must be taken of subtly coercive police questions, as well as the
possibly vulnerable subjective state of the person who consents. Those searches
that are the product of police coercion can thus be filtered out without
undermining the continuing validity of consent searches. In sum, there is no
reason for us to depart in the area of consent searches, from the traditional
definition of ‘voluntariness.’

The approach of the Court of Appeals for the Ninth Circuit
finds no support in any of our decisions that have attempted to define the
meaning of ‘voluntariness.’ Its ruling, that the State must affirmatively prove
that the subject of the search knew that he had a right to refuse consent,
would, in practice, create serious doubt whether consent searches could
continue to be conducted. * * *

The very object of the inquiry—the nature of a person’s
subjective understanding—underlines the difficulty of the prosecution’s burden
under the rule applied by the Court of Appeals in this case. Any defendant who
was the subject of a search authorized solely by his consent could effectively
frustrate the introduction into evidence of the fruits of that search by simply
failing to testify that he in fact knew he could refuse to consent. And the
near impossibility of meeting this prosecutorial burden suggests why this Court
has never accepted any such litmus-paper test of voluntariness. * * *

One alternative that would go far toward proving that the
subject of a search did know he had a right to refuse consent would be to
advise him of that right before eliciting his consent. That, however, is a
suggestion that has been almost universally repudiated by both federal13 and
state courts,14 and, **2050 we think, rightly so. For it would be thoroughly
impractical to impose on the normal consent search the detailed requirements of
an effective warning. Consent searches are part of the standard investigatory
techniques of law enforcement *232 agencies. They normally occur on the
highway, or in a person’s home or office, and under informal and unstructured conditions.
The circumstances that prompt the initial request to search may develop quickly
or be a logical extension of investigative police questioning. The police may
seek to investigate further suspicious circumstances or to follow up leads
developed in questioning persons at the scene of a crime. These situations are
a far cry from the structured atmosphere of a trial where, assisted by counsel
if he chooses, a defendant is informed of his trial rights. Cf. Boykin v.
Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274. And, while
surely a closer question, these situations are still immeasurably, far removed
from ‘custodial interrogation’ where, in Miranda
v. Arizona
, supra, we found that
the Constitution required certain now familiar warnings as a prerequisite to
police interrogation. * * *

It is said, however, that a ‘consent’ is a ‘waiver’ of a
person’s rights under the Fourth and Fourteenth Amendments. The argument is
that by allowing the police to conduct a search, a person ‘waives’ whatever
right he had to prevent the police from searching. It is argued that under the
doctrine of **2052 Johnson v. Zerbst,
304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, to establish such a
‘waiver’ the State must demonstrate ‘an intentional relinquishment or
abandonment of a known right or privilege.’ * * *

Almost without exception, the requirement of a knowing and
intelligent waiver has been applied only to those rights which the Constitution
guarantees to a criminal defendant in **2053 order to preserve a fair trial.18
Hence, and hardly surprisingly in view of the facts of Johnson itself, the
standard of a knowing and intelligent waiver has most often been applied to
test the validity of a waiver of counsel, either at trial, or upon a guilty
plea.  And the Court has also applied the
Johnson criteria to assess the effectiveness of a waiver of other trial rights
such as the right to confrontation, to a jury trial, and to a speedy trial, and
the right to be free from 238 twice being placed in jeopardy. * *

**2054 The guarantees afforded a criminal defendant at trial
also protect him at certain stages before the actual trial, and any alleged
waiver must meet the strict standard of an intentional relinquishment of a
‘known’ right. But the ‘trial’ guarantees that have been applied to the
‘pretrial’ *239 stage of the criminal process are similarly designed to protect
the fairness of the trial itself. * * *

The standards of Johnson were, therefore, found to be a
necessary prerequisite to a finding of a valid waiver. See 384 U.S., at
475—479, 86 S.Ct., at 1628—1631. **2055 Cf.
Escobedo v. Illinois, 378 U.S., at
490 n. 14, 84 S.Ct., at 1765.29 * * *

The protections of the Fourth Amendment are of a wholly
different order, and have nothing whatever to do with promoting the fair
ascertainment of truth at a criminal trial. Rather, as Mr. Justice
Frankfurter’s opinion for the Court put it in Wolf v. Colorado, 338 U.S. 25,
27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, the Fourth Amendment protects the
‘security of one’s privacy against arbitrary intrusion by the police . . ..’  * * *

Nor can it even be said that a search, as opposed to an
eventual trial, is somehow ‘unfair’ if a person consents to a search. While the
Fourth and Fourteenth *243 Amendments limit the circumstances under which the
police can conduct a search, there is nothing constitutionally suspect in a
person’s voluntarily allowing a search. The actual conduct of the search may be
precisely the same as if the police had obtained a warrant. And, unlike those
constitutional guarantees that protect a defendant at trial, it cannot be said
every reasonable presumption ought to be indulged against voluntary
relinquishment. We have only recently stated: ‘(I)t is no part of the policy
underlying the Fourth and Fourteenth Amendments to discourage citizens from
aiding to the utmost of their ability in the apprehension of criminals.’ Coolidge v. New Hampshire, 403 U.S., at
488, 91 S.Ct., at 2049. Rather, the community has a real interest in
encouraging consent, for the resulting search may yield necessary evidence for
the solution and prosecution of crime, evidence that may insure that a wholly
innocent person is not wrongly charged with a criminal offense.

Those cases that have dealt with the application of the Johnson v. Zerbst rule make clear that
it would be next to impossible to apply to a consent search the standard of ‘an
intentional relinquishment or abandonment of a known right or privilege.’ To be
true to Johnson *244 and its progeny, there must be examination into the knowing
and understanding nature of the waiver, an examination that was designed for a
trial judge in the structured atmosphere of a courtroom. * * *  * * 2057 *245 It would be unrealistic to
expect that in the informal, unstructured context of a consent search, a
policeman, upon pain of tainting the evidence obtained, could make the detailed
type of examination demanded by Johnson.

  • * *  

Similarly, a ‘waiver’ approach to consent searches would be
thoroughly inconsistent with our decisions that have approved ‘third party
consents.’ In Coolidge v. New Hampshire,
403 U.S., at 487—490, 91 S.Ct., at 2048—2050, where a wife surrendered to the
police guns and clothing belonging to her husband, we found nothing
constitutionally impermissible in the admission of that evidence at trial since
the wife had not been coerced. Frazier v.
Cupp
, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684, held that
evidence seized from the defendant’s duffel bag in a search authorized by his
cousin’s consent was admissible at trial. We found that the defendant had
assumed the risk that his cousin, with whom he shared the bag, would allow the
police to search it. See also Abel v. United States, 362 U.S. 217, 80 S.Ct.
683, 4 L.Ed.2d 668. And *246 in Hill v.
California
, 401 U.S. 797, 802—805, 91 S.Ct. 1106, 1110—1111, 28 L.Ed.2d
484, we held that the police had validly seized evidence from the petitioner’s
apartment incident to the arrest of a third party, since the police had
probable cause to arrest the petitioner and reasonably, though mistakenly,
believed the man they had arrested was he. Yet it is inconceivable that the
Constitution could countenance the waiver of a defendant’s right to counsel by
a third party, or that a waiver could be found because a trial judge
reasonably, though mistakenly, believed a defendant had waived his right to
plead not guilty. * * *

Much of what has already been said disposes of the argument
that the Court’s decision in the Miranda
case requires the conclusion that knowledge of a right to refuse is an
indispensable element of a valid consent. The considerations that informed the
Court’s holding in Miranda are simply
inapplicable in the present case. *247 In Miranda
the Court found that the techniques of police questioning and the nature of
custodial surroundings produce an inherently coercive situation. The Court
concluded that ‘(u)nless adequate protective devices are employed to dispel the
compulsion inherent in custodial surroundings, no statement obtained from the
defendant can truly be the product of his free choice.’ 384 U.S., at 458, 86
S.Ct., at 1619. And at another point the Court noted that ‘without proper
safeguards the process of in-custody interrogation of persons suspected or
accused of crime contains inherently compelling pressures which work to
undermine the individual’s will to resist and to compel him to speak where he
would not otherwise do so freely.’ Id.,
at 467, 86 S.Ct., at 1624.

In this case, there is no evidence of any inherently
coercive tactics—either from the nature of the police questioning or the
environment in which it took place. Indeed, since consent searches will
normally occur on a person’s own familiar territory, the specter of incommunicado
police interrogation in some remote station house is simply inapposite. There
is no reason to believe, under circumstances such as are present here, that the
response to a policeman’s question is presumptively coerced; and there is,
therefore, no reason to reject the traditional test for determining the
voluntariness of a person’s response. Miranda, of course, did not reach
investigative questioning of a person not in custody, which is most directly
analogous to the situation of a consent search, and it assuredly did not
indicate that such questioning ought to be deemed inherently coercive. See supra, at 2050.

It is also argued that the failure to require the Government
to establish knowledge as a prerequisite to a valid *248 consent, will relegate
the Fourth Amendment to the special province of ‘the sophisticated, the knowledgeable
and the privileged.’ We cannot agree. The traditional definition of
voluntariness we accept today has always taken into account evidence of minimal
schooling, low intelligence, and the lack of any effective warnings to a person
of his rights; and the voluntariness of any statement taken under those
conditions has been carefully scrutinized to determine whether it was in fact
voluntarily given.

Our decision today is a narrow one. We hold only that when
the subject of a search is not in custody and the State attempts to justify a
search on the basis of his consent, the Fourth and Fourteenth Amendments
require that it demonstrate that the consent was in fact voluntarily given, and
not the result of duress or coercion, express or implied. Voluntariness is a
question of fact *249 to be determined from all the 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. Because the California court
followed these principles in affirming the respondent’s conviction, and because
the Court of Appeals for the Ninth Circuit in remanding for an evidentiary
hearing required more, its judgment must be reversed.

It is so ordered.

Judgment of Court of Appeals reversed.

* * *

Mr. Justice MARSHALL, dissenting.* * *

If consent to search means that a person has chosen to forgo
his right to exclude the police from the place they seek to search, it follows
that his consent cannot *285 be considered a meaningful choice unless he knew
that he could in fact exclude the police.* * * I would therefore hold, at a
minimum, that the prosecution may not rely on a purported consent to search if
the subject of the search did not know that he could refuse to give consent.
That, I think, is the import of Bumper v.
North Carolina
, supra. Where the
police claim authority to search yet in fact lack such authority, the subject
does not know that he may permissibly refuse them entry, and it is this lack of
knowledge that invalidates the consent.

If one accepts this view, the question then is a simple one:
must the Government show that the subject knew of his rights, or must the
subject show that he lacked such knowledge?

I think that any fair allocation of the burden would require
that it be placed on the prosecution. On this question, the Court indulges in
what might be called the ‘straw man’ method of adjudication. The Court responds
to this suggestion by overinflating the burden. And, when it is suggested that
the prosecution’s burden of proof could be easily satisfied if the police
informed the subject of his rights, the Court responds by refusing to require
the police to make a ‘detailed’ inquiry. Ante, at 2057. If the Court candidly
faced the real *286 question of allocating the burden of proof, neither of
these maneuvers would be available to it.

If the burden is placed on the defendant, all the subject
can do is to testify that he did not know of his rights. And I doubt that many
trial judges will find for the defendant simply on the basis of that testimony.
Precisely because the evidence is very hard to come by, courts have
traditionally been reluctant to require **2078 a party to prove negatives such
as the lack of knowledge. See, e.g., 9 J. Wigmore, Evidence 274 (3d ed. 1940);
F. James, Civil Procedure s 7.8 (1965); E. Morgan, Some Problems of Proof Under
the Anglo-American System of Litigation 75—76 (1956).

In contrast, there are several ways by which the subject’s
knowledge of his rights may be shown. The subject may affirmatively demonstrate
such knowledge by his responses at the time the search took place, as in United States v. Curiale, 414 F.2d 744
(CA2 1969). Where, as in this case, the person giving consent is someone other
than the defendant, the prosecution may require him to testify under oath.
Denials of knowledge may be disproved by establishing that the subject had, in
the recent past, demonstrated his knowledge of his rights, for example, by
refusing entry when it was requested by the police. The prior experience or
training of the subject might in some cases support an inference that he knew
of his right to exclude the police.

The burden on the prosecutor would disappear, of course, if
the police, at the time they requested consent to search, also told the subject
that he had a right to refuse consent and that his decision to refuse would be
respected. The Court’s assertions to the contrary notwithstanding, there is
nothing impractical about this method of satisfying the prosecution’s burden of
proof. *287 It must be emphasized that the decision about informing the subject
of his rights would lie with the officers seeking consent. If they believed
that providing such information would impede their investigation, they might
simply ask for consent, taking the risk that at some later date the prosecutor
would be unable to prove that the subject knew of his rights or that some other
basis for the search existed.

The Court contends that if an officer paused to inform the
subject of his rights, the informality of the exchange would be destroyed. I
doubt that a simple statement by an officer of an individual’s right to refuse
consent would do much to alter the informality of the exchange, except to alert
the subject to a fact that he surely is entitled to know. It is not without
significance that for many years the agents of the Federal Bureau of
Investigation have routinely informed subjects of their right to refuse
consent, when they request consent to search. * * * 

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges.  Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case.  Contact the Law Office of Mark Deniz now for a free case evaluation at (858) 751-4384 or send an email to mark@denizdefense.com. 


Latest, Proven Results

Area of Practice: DUI Defendant charged with a DUI with a prior blood alcohol level of .14%.
January 2015
Outcome of Case:
No jail time or picking up trash.

Area of Practice: Minor in Possession of Alcohol with one year mandatory license suspension.
January 2015
Outcome of Case:
An infraction (ticket) with no drivers license issues.

Area of Practice: DUI Defense- 1st time DUI
January 2015
Outcome of Case:
"Wet Reckless" with no trash pickup or jail time.

Protect Your License