Actual and Apparent Authority to Consent to Search

Actual and Apparent Authority to Consent by Darren Chaker

“Actual Authority;” Where the owner of property has expressly granted authority for a person to give consent, or where it is known that the person has mutual use or jointaccess, then he or she is said to have “actual authority” to consent to a search of that property. (United States v. Davis (9th Cir. 2003) 332 F.3rd 1163, 1169; People v. Superior Court [Walker], supra, at pp. 1205-1208 .)

“Apparent Authority:” A determination made based upon the circumstances and whether the officers reasonably believe that the person giving consent had the authority to do so. (United States v. Fiorillo (9th Cir. 1999) 186 F.3rd 1136; People v. Superior Court [Walker], supra, at pp.1208-1214.)

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Implied Consent and Express Consent to Search

Implied v. Express Consent by Darren Chaker

Express vs. Implied Consent: A person’s consent to search may be “express” or “implied.” (Torbet v. United Airlines, Inc. (9^th Cir. 2002) 298 F.3^rd 1087, 1089 (People v. Panah (2005) 35 Cal.4^th 395, 466-467.)

Express Consent is when answering in the affirmative when asked for consent to search is the most obvious example of an “express consent.”

Implied Consent exists when, considering the “totality of the circumstances,” a reasonable person would have understood that he is agreeing to a search. (United States v. Jenkins (4^th Cir. 1993) 986 F.2^nd 76, 79.)

For example entering a court house or other government building implies consent to search. Upon entering a military base where signs are posted warning that persons on the base are subject to being searched. (United States v. Ellis (5^th Cir. 1977) 547 F.2^nd  863, Naval base; United States v. Jenkins, supra; Morgan v. United States (9^th Cir. 2003) 323 F.3^rd 776.)

On the other hand, consent to search may be limited by the suspect if he does not limit the consent to a specific area. For example, consent to search one’s car, unless specifically limited, includes the whole car and any containers in the car. (People Clark (1993) 5 Cal.4^th 950, 977-980.)

Nonetheless, consent to search has to be given freely and voluntarily, with a knowledge of the right to refuse. If the suspect reasonably misconstrues, due to an officer’s misrepresentations, the purpose of the search, it will probably be held to be involuntary. (See People v. Reeves (1964) 61 Cal.2^nd 268, 273; People v. Mesaris (1970) 14 Cal.App.3^rd 71.)

But, a ruse is but one factor to consider. If, under the totality of the circumstances, a suspect is not materially misled as to the privacy rights he is giving up by consenting, the search will be held to be valid. (People v. Avalos (1996) 47 Cal.App.4^th 1567.)

Computer Search

Police use of computer forensics on computers is not new. Likewise, the use of counter forensics is not new. As a rule, however, it should be assumed that the general law on “containers” will be applicable, and that a search warrant will be required. (See Smith v. Ohio (1990) 494 U.S. 541, 542 [108 L.Ed.2nd 464].) California is in accord with this, holding that, “(a) computer is entitled to no more protection than any other container.” (People v. Endacott (2008) 164 Cal.App.4th 1346)

The scope of the consent is measured by a standard of objective reasonableness based upon all the surrounding circumstances: “What would the typical reasonable person have understood by the exchange between the officer and the suspect?” (Florida v. Jimeno (1991) 500 U.S. 248, 251 [114 L.Ed.2nd 297, 303].)

The Supreme Court provided a nice restriction on a co-tenant consenting to a search. In Georgia v. Randolph, 547 U.S. 103 (2006), the court held if one co-tenant is present and explicitly refuses to consent to a search of property he/she shares with the other tenant, then police cannot search that property based on consent from the other tenant. In that case, the wife called police on her husband. Wife invited police into her home to recover cocaine from his home office. Being a smart attorney, the husband refused consent. Police being police ignored the husband’s request to leave, obtained the cocaine and arrested the husband. Eventually, the Supreme Court later determined the husband had a right to refuse police to search. (I think it's bad marriage which ends in good case law.)

Of course, there are several exceptions to the rule in Randolph. The next computer typically searched other than the one at home or using on smart phone is the one at work. Typically, a business that owns the company’s computers may consent to the search of a computer used by an employee, at least when the employee is on notice that he has no reasonable expectation of privacy in the contents of the computer he is using. (United States v. Ziegler (9th Cir. 2006) 474 F.3rd 1184.)

Automobile Search

Vehicle Search Incident to Arrest: Any time a person is arrested in, or even “near” (see below), or even as a “recent occupant” of his or her vehicle, a search of the suspect and the area immediately surrounding the suspect is lawful. (New York v. Belton (1981) 453 U.S. 454 [69 L.Ed.2nd 453 768]; United States v. Robinson (1973) 414 U.S. 218 [38 L.Ed.2nd 427]; People v. Molina (1994) 25 Cal.App.4 1038, 1044; Thornton v. United States (2004) 541 U.S. 615 [158 L.Ed.2nd 905].)

Containers in the Vehicle: The searchable area includes any containers found in that area, even if not the arrestee’s property. (People v. Mitchell (1995) 36 Cal.App.4th 672; People v. Prance (1991) 226 Cal.App.3rd 1525; purses belonging to passengers.) See also Wyoming v. Houghton (1999) 626 U.S. 295 [143 L.Ed.2nd 408]; search of other person’s purse when the search based upon probable cause.

Police may only search the area of immediate control, or “The Lunging area.” The area to be searched is limited by Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2nd 685], to the “lunging area” within the vehicle. (People v. Summers (1999) 73 Cal.App.4th 288.) The “lunging area” of Chimel generally includes the entire passenger area of the car. (New York v. Belton (1981) 453 U.S. 454, 460 [69 L.Ed.2nd 768, 775].)

This includes the rear area of a hatchback vehicle, so long as that area is accessible to the passengers in the vehicle, whether or not that storage area is covered. (United States v. Mayo (9th Cir. 2005) 394 F.3rd 1271; see also United States v. Caldwell (8th Cir. 1996) 97 F.3rd 1063, 1067; United States v. Doward (1st Cir. 1994) 41 F.3rd 789, 794.)

Darren Chaker

Test for Voluntary Consent to Search - Darren Chaker

By Darren Chaker

The test for voluntariness is whether considering the totality of the circumstances “the government obtained a statement by physical or psychological coercion or by an improper inducement so that the suspects will was overborne.” Derrick v. Peterson, 924 F.2d 813, 817 (9th Cir. 1990), quoting United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1998).

The core case concerning the determine validity of consent is Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Schneckloth ruled that the test is whether or not, in obtaining the consent, the defendant's will was overborne. In short, was consent a free choice of defendant? The court looks at a "totality of the circumstances." Some of the criteria in Schneckloth considers:

·         the length of detention

·         his education

·         his intelligence

·         the age of the accused

·         prolonged nature of the questioning

·         the use of physical punishment (deprivation of food/sleep)

There is no absolute requirement that the consent be obtained in writing; however, because having an executed, written consent form is one of the clearest evidences of voluntariness, most authorities strongly urge the use of the forms.

Voluntary Consent to Search - Darren Chaker

Darren Chaker

A consent, to be lawful, must be “freely and voluntarily” given. (Bumper v. North Carolina (1969) 391 U.S. 543, 548 [20 L.Ed.2 797, 802].)

Implying Guilt:  It is improper to purposely put a subject in the position where he feels that by exercising his right to refuse, he would be incriminating himself or admitting participation in illegal activity.  (Crofoot v. Superior Court (1981) 121 Cal.App.3 717, 725.)

Under Arrest:  The fact alone that the suspect is under arrest is not enough to demonstrate coercion.  (United States v. Watson (1976) 423 U.S. 411 [46 L.Ed.2^nd 598]; People v. Llamas (1991) 235 Cal.App.3^rd 441, 447.)

Use of Firearms:  Attempting to obtain a consent from a suspect while firearms are being displayed will inevitably result in a finding that the consent was coerced.  (People v. McKelvy (1972) 23 Cal.App.3^rd 1027, 1034: “(N)o matter how politely the officer may have phrased his request for the object, it is apparent that defendant’s compliance was in fact under compulsion of a direct command by the officer. . . . The evidence established ‘no more than acquiescence to a claim of lawful authority.’”)

Even an implied assertion of authority by the police officer may be enough to invalidate a consent to search.  (People v. Fields (1979) 95 Cal.App.3rd 582 972, 976; Amos v. United States (1921) 255 U.S. 313, 317 [65 L.Ed.2^nd 654, 656].)

Threatening to Obtain a Search Warrant:  While telling a suspect that officers will obtain a warrant invalidates a consensual search under circumstances where the officers do not actually have the necessary probable cause to obtain a warrant, threatening to get a warrant when the officers do have the necessary probable cause is lawful.  (People v. Robinson (1957) 149 Cal.App.2 282, 286; People v. Goldberg (1984) 161 Cal.App.3^rd  170, 188; Bumper v. North Carolina (1968) 391 U.S. 543 [20 L.Ed.2nd 797] United States v. Soriano (9th Cir. 2003) 361 F.3^rd 494, 971; People v. Williams (2007) 156 Cal.App.4th 949, 961.)

Threatening to Use a Drug-Sniffing Dog:  Threatening to use a drug-sniffing dog, when such use does not require the suspect’s consent and is otherwise lawful, will also not invalidate the

resulting consent to search.  (United States v. Todhunter (9^th Cir. 2002) 297 F.3^rd 886, 891.)

Using a Ruse:  A free and voluntary consent, as a general rule, may not be obtained by, or as the product of, a ruse.  (People v. Reyes (2000) 83 Cal.App.4^th  7, 13; People v. Reeves (1964) 61 Cal.2 268, 273; People v. Miller (1967) 248 Cal.App.2 731.)

Threats to Take Away One’s Children:  Threatening to take away one’s children, letting social services take them, if the person does not cooperate, will negate a consent to search.  (United States v. Soriano (9^th Cir. 2003) 346 F.3 963.) See also Lynum v. Illinois (1963) 372 U.S. 528, 534 [9 L.Ed.2^nd  922, 926]; and United States v. Tingle (9^th Cir. 1981) 658 F.2^nd 1332, 1336; two confession cases where statements were rendered involuntary due to threats to take the children away if the subjects did not cooperate.

Manner of Inquiry:  It is not so much what the officer is asking, but rather the “manner or mode” in which it is put to the citizen which determines whether the response is voluntary or not.  (People v. Franklin (1987) 192 Cal.App.3^rd  938, 941.)

Valid Consent to Search - Darren Chaker

Darren Chaker

Valid Consent. A valid consent is a lawful substitute for both a search warrant and probable cause. (United States v. Matlock (1974) 415 U.S. 164, 165-166 [39 L.Ed.2^nd 242, 246]; Vandenberg v. Superior Court (1970) 8 Cal.App.3 1048, 1053.) “(A) search conducted pursuant to a valid consent is constitutionally permissible.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222 [36 L.Ed.2^nd 854, 860].)

Why do people consent? Would a person who has something to hide really consent to being searched? Yes!

“Some persons are more concerned with what they perceive to be the appearance of guilt, and feel they must consent to avoid such an appearance, hoping the law enforcement officer will either lose interest or fail to find whatever it is the person hopes to keep concealed. Consent under these circumstances, however, if the person reasonably should have felt like he or she had the option of refusing, is still a valid consent.” (See People v. James (1977) 19 Cal.3 99, 114.)

For consent, to be lawful, consent must be “freely and voluntarily” given. (Bumper v. North Carolina (1969) 391 U.S. 543, 548 [20 L.Ed.2 797, 802].) “Whether consent to search was voluntarily given is ‘to be determined from the totality of all the circumstances.’” (Italics added; United States v. Soriano (9th Cir. 2003) 361 F.3 494, 501; citing Schneckloth v. Bustamonte, supra; see also Pavao v. Pagay (9th Cir. 2002) 307 F.3^rd 915, 919; United States v. Crapser (9 Cir. 2007) 472 F.3^rd 1141, 1149.)