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Consent searches and San Diego DUI

On Behalf of | Apr 9, 2014 | Firm News |

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


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. *



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.


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 [email protected].

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