{"id":2763,"date":"2019-02-06T17:39:29","date_gmt":"2019-02-06T17:39:29","guid":{"rendered":"http:\/\/hinzmanflory.com\/?p=2763\/"},"modified":"2019-03-22T20:46:49","modified_gmt":"2019-03-22T20:46:49","slug":"consent-or-not-consent-that-is-the-question","status":"publish","type":"post","link":"https:\/\/hinzmanflory.com\/es\/consent-or-not-consent-that-is-the-question\/","title":{"rendered":"CONSENT OR NOT CONSENT: THAT IS THE QUESTION"},"content":{"rendered":"
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An all too-often refrain from law enforcement when explaining why it was okay for them to have searched someone\u2019s person, automobile, or even home is \u201che consented\u201d or \u201cshe consented\u201d or \u201cthey consented\u201d or fill in the blank. Police officers love \u201cconsent.\u201d After all, getting a warrant requires work on their part and scrutiny by a judge. It is so much easier for them to just ask \u201cMind if I take a look around?\u201d and receive, in the vast majority of cases, the answer they want. A \u201cno\u201d answer to this simple question and that\u2019s that. Or is it?<\/p>\n

It is well established law that once a person consents to a search a warrant is no longer required. However, for consent to a search to be effective it must be freely and voluntarily given<\/strong>. Bumper v. North Carolina<\/em>, 391 U.S. 543, 548 (1968); Johnson v. State<\/em>, 803 S.W.2d 272, 286 (Tex. Crim. App. 1990), cert. denied<\/em> 501 U.S. 1259 (1991).<\/p>\n

An interesting question to ponder is if an officer is asking permission to search does it mean that he or she actually needs it in order to do so? Sometimes they don\u2019t and are just doing so as part of their regular procedure. Frequently I read police reports where officers ask for permission to search a car after smelling marijuana emanating from the vehicle when clearly consent is not required at this point – Texas courts have long held that the odor of marijuana emanating from an automobile after a traffic stop provides probable cause for a search of the vehicle. However, in many other circumstances, they are asking for permission for one reason only: because the Constitution requires a warrant for them to proceed with the search and the only way around that requirement is for them to receive consent from the person whose body, car, or home they wish to search. So the question of utmost importance for a defendant and defense counsel becomes:<\/p>\n

When Is Consent Not Consent?<\/u><\/strong><\/p>\n

Under Bumper<\/em> and Johnson<\/em>, the simple answer is when it is not given \u201cfreely and voluntarily.\u201d These cases establish that the burden is on the State to show by clear and convincing evidence that the consent was freely and voluntarily given, positive and unequivocal, and not the result of actual or implied duress or coercion. <\/strong>Johnson<\/em> at 286; Meeks v. State<\/em>, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985). Consent cannot be physically or psychologically coerced. Johnson <\/em>at 287. Consent to search is not to be lightly inferred, and the State\u2019s burden cannot be discharged by showing mere acquiescence to a claim of lawful authority. Kolb v. State<\/em>, 532 S.W.2d 87, 89-90 (Tex. Crim. App. 1976). Whether a consent to search was in fact voluntary is a question of fact to be determined from the \u201ctotality of the circumstances.\u201d Schneckloth v. Bustamonte<\/em>, 412 U.S. 218, 227 (1973); Meeks <\/em>at 510.<\/p>\n

In Fontenot v. State<\/em>, 792 S.W.2d 250, 253-54 (Tex. App. — Dallas 1990), the Dallas Court of Appeals established a list of factors to be examined when determining whether a defendant freely and voluntarily consented to a search:<\/p>\n

    \n
  1. whether, and to what extent, officers exhibited a show of force, including a display of weapons,<\/li>\n
  2. whether the actions of the arresting officers can be classified as flagrant misconduct,<\/li>\n
  3. whether the police threatened to obtain a search warrant if the detainee did not acquiesce, or whether the police claimed a right to search,<\/li>\n
  4. whether police first gave defendant the Miranda<\/em> warnings,<\/li>\n
  5. whether the arrest was made in order to obtain consent,<\/li>\n
  6. whether defendant knew that he could refuse to allow a search,<\/li>\n
  7. whether consent was first offered by defendant or was in response to police request,<\/li>\n
  8. defendant\u2019s education, intelligence, and physical condition, and<\/li>\n
  9. the proximity of the consent to the arrest, since an intervening time period can provide a degree of attenuation of the taint.<\/li>\n<\/ol>\n

    While all of these factors are obviously important to consider, I\u2019m going to focus on the five that I have seen come up the most in my practice over the years.<\/p>\n

    Show of Force<\/u><\/p>\n

    How often these days as defense practitioners do we see one on one encounters between an officer and a defendant during a traffic stop? Not very often I would say. Most traffic stops usually eventually involve at least two patrol cars, often more than that, with at least two to four, sometimes more, officers being present by the time the person stopped makes the fateful decision to \u201cconsent\u201d to a search of his or her vehicle. In evaluating the validity of consent, a court may look to the fact that it was obtained in an environment with numerous officers present<\/strong>. Johnson <\/em>at 287. Obviously, when officers draw their weapons<\/strong>, again a frequent occurrence in today\u2019s world, a defendant is going to feel hesitant to refuse consent for a search. Finally, the presence of officers in plain clothes<\/strong> has been held to be a factor contributing to the coerciveness of the environment. U.S. v. Carbajal<\/em>, 883 F. Supp. 148, 152 (W.D. Tex. 1995).<\/p>\n

    The Threat to Obtain a Search Warrant<\/u><\/p>\n

    I would argue if this happens (which as we all know as defense attorneys it frequently does), you have a very good case that a consent was ineffective – the main argument being how can someone effectively exercise their constitutional rights by refusing to consent to a warrantless search if they believe they can\u2019t stop the search anyway? The importance of this cannot be overstated because it relates so closely to the next factor, namely:<\/p>\n

    Did the Defendant Know He Could Refuse the Search?<\/u><\/p>\n

    How often have you asked a client in frustration, \u201cWhy in the world did you say yes?\u201d only to hear in response \u201cI didn\u2019t think I could say no\u201d? Whether because of a threat to obtain a search warrant, the fact that no Miranda<\/em> warnings are given prior to a search request, or the infrequency with which officers explain to a suspect that they do not have to consent to a\u00a0search, it is an all-too-common reality for our clients to just allow police officers to conduct warrantless searches. The truth is, however, that the State will certainly have difficulty showing by clear and convincing evidence that a defendant knew he or she could refuse a search if the police basically told that person the search was inevitable because they were going to get a warrant anyway. Further, an argument can be made for ineffective consent when no Miranda<\/em> warnings or explanation of the suspects right to refuse consent are given.<\/p>\n

    Consent First Offered by a Defendant versus In Response to a Police Request<\/u><\/p>\n

    In my experience, cases where a suspect says \u201cGo ahead and look\u201d are greatly outnumbered by those where the officer says \u201cMind if I take a look?\u201d, meaning that consent is much more commonly offered in response to a police request as opposed to being volunteered so that this factor often aids the Defendant. \u00a0In my opinion, to effectively argue ineffective consent in the rarer cases where a client volunteers to a search, you better have a great number of officers with guns drawn, preferably in plain clothes, not reading Miranda<\/em> warnings, and behaving badly in general.<\/p>\n

    Other Ineffective Consent Factors<\/u><\/p>\n

    Years ago, I successfully argued ineffective consent to a warrantless search of our clients home leading to the granting of a Motion to Suppress Evidence and a dismissal of all charges. We had a large number of officers in plain clothes, lack of Miranda warnings prior to the \u201cconsent,\u201d and a claim of a right to search by the lead officer (\u201cWhat we normally do in these situations is search the place and if we don\u2019t find anything we leave\u201d). In addition, we had two other factors that helped:<\/p>\n

    (1) Remember consent forms? I vaguely do, maybe. But that is the point – they do exist and are simply not used by police when conducting warrantless searches. In our case, the lead officer admitted they were available but not used on the day of their warrantless search of our client\u2019s home Having a suspect sign a consent to search form explaining his or her constitutional rights to refuse to allow a search would really clarify these issues and ensure that the suspect\u2019s consent was freely and voluntarily given. It follows that failure to obtain a written consent to search or provide a recording of the consent is another factor favoring a defendant when a court is determining whether a consent was effective.<\/strong><\/p>\n

    (2) Our client repeatedly asked \u201cDon\u2019t you need a warrant?\u201d and was ignored by the officers – he stated that he never actually consented to the search and that the officers had simply entered his house without permission. The officers stated that our client did consent to the search, but also asked about a warrant. In my brief, I cited two Florida cases involving this issue, including a Florida Supreme Court holding that the defendants\u2019 question as to whether the arresting officer had a search warrant \u201cclearly indicated that they did not consent to the search.\u201d State v. Casal<\/em>, 410 So. 152, 155 (Fla. 1982).<\/p>\n

    This is a big one. If a suspect asks the question \u201cDon\u2019t you need a warrant?\u201d it is difficult for the State to argue that he or she is consenting to a search because the suspect is in effect telling the officer they want a warrant to be obtained if required by law.<\/strong> In addition,\u00a0one of three things can happen if this question is asked, all of which point to a positive result for the suspect\/defendant. The officer can answer yes, in which case the search hopefully doesn\u2019t happen or a warrant is obtained. The officer can answer no, which, if true, makes the issue of consent irrelevant, or, if not true, violates a number of the factors discussed above and any consent would most certainly be found to be ineffective. The officer can also ignore the question, which is, in effect an answer of no with the resulting consequences to the State\u2019s case.<\/p>\n

    Conclusion<\/u><\/p>\n

    The late Justice Jackson once eloquently described what is in many ways very difficult to describe, namely the overwhelming importance of the protections provided by the Fourth Amendment to the Constitution of the United States of America:<\/p>\n

    \n

    The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists of requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate\u2019s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people\u2019s homes secure only in the discretion of police officers . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be determined by a judicial officer, not by a policeman or Government enforcement agent . . . Any other rule would undermine \u201cthe right of the people to be secure in their persons, houses, papers and effects,\u201d and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.<\/p>\n

    Johnson v. United States, <\/em>333 U.S. 10, 13-14, 17 (1948).<\/p>\n<\/blockquote>\n

    Because in the practice of criminal defense we so often deal with warrantless searches, it sometimes is easy to forget that these searches are supposed to be the exceptions, not the rule. We must, however, remember this, because it is our duty and our responsibility to ensure that the Government remembers it as well.<\/p>\n

    Craig Flory
    \n<\/strong>October 27, 2016<\/p>\n<\/div>

    <\/div>\n\n\t\t\t\t\t<\/div>\n\t\t\t\t<\/div><\/div><\/div>\n","protected":false},"excerpt":{"rendered":"

    An all too-often refrain from law enforcement when explaining why it was okay for them to have searched someone\u2019s person, automobile, or even home is \u201che consented\u201d or \u201cshe consented\u201d…<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[58,53],"tags":[],"_links":{"self":[{"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/posts\/2763"}],"collection":[{"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/comments?post=2763"}],"version-history":[{"count":2,"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/posts\/2763\/revisions"}],"predecessor-version":[{"id":2821,"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/posts\/2763\/revisions\/2821"}],"wp:attachment":[{"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/media?parent=2763"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/categories?post=2763"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hinzmanflory.com\/es\/wp-json\/wp\/v2\/tags?post=2763"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}