NC: Race may be relevant to determining whether defendant consented to a search, but it isn’t determinative; record shows consent

Race may be relevant to determining whether defendant consented to a search, but it isn’t determinative. The record as a whole, however, shows that consent was completely voluntary. State v. Bartlett, 2018 N.C. App. LEXIS 775 (Aug. 8, 2018):

In the instant case, Defendant contends that his race is highly relevant to the determination of whether he voluntarily consented to the search, in that “there is strong evidence that people of color will view a ‘request’ to search by the police as an inherently coercive command.” In support of his argument, Defendant cites various studies which tend to indicate that for people of color in general, “any police request for consent to search will be viewed as an unequivocal demand to search that is disobeyed or challenged only at significant risk of bodily harm.” Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 243 (2002). Accordingly, Defendant urges that his race “gives pause as to whether the consent” in the instant case was “genuinely voluntary.”

Defendant is correct that his race may be a relevant factor in considering whether his consent was voluntary under the totality of the circumstances. United States v. Mendenhall, 446 U.S. 544, 558, 100 S. Ct. 1870, 64 L. Ed. 2d 497, 512 (1980) (citation omitted). However, beyond the studies to which he refers, the record is devoid of any indication that Defendant’s individual consent in this particular case was involuntary. See id. (“While these [race] factors were not irrelevant, neither were they decisive[.]”) (citation omitted). To the contrary, the overall circumstances presented at the suppression hearing tended to show that Defendant consented “freely and intelligently[,]” and not “merely to avoid resistance.” Little, 270 N.C. at 239, 154 S.E.2d at 65 (citations and quotation marks omitted).

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