WaPo: Is voluntariness of consent to search or seize a question of fact, law or both? by Orin Kerr:
Re Asku v. California, cert. pet. pending:
In light of that [prior] post, I thought I would flag a very interesting cert petition from the Jenner & Block Supreme Court Clinic at the University of Chicago in Aksu v. California. Here’s the Question Presented:
The federal courts of appeals and state courts of last resort acknowledge that they are intractably split about a recurring and important issue under the Fourth Amendment. A large number of courts treat the question of whether a defendant voluntarily consented to a warrantless search as a mixed question of fact and law that is reviewed de novo on appeal, much like the voluntariness of a confession under the Fifth Amendment. An equally large number of courts, including the court here, have treated the voluntariness of a consent to a search as a factual question, subject only to highly deferential appellate review.
The question presented is: What is the standard by which appellate courts review a trial co
urt’s holding that a defendant voluntarily consented to a warrantless search for Fourth Amendment purposes?
California waived its right to file a response, but the court directed California to file one anyway. California has now filed its Brief in Opposition, …