Post details: Bowing to the inevitable and consenting to a search is not involuntariness


Permalink 12:02:23 pm, by fourth, 966 words, 643 views   English (US)
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Bowing to the inevitable and consenting to a search is not involuntariness

Officers received a report that several men were in a Boise park smoking marijuana, and a plainclothed officer responded and watched them, confirming the report. He approached the group and asked them to provide the joint and be cited or be subjected to a search and arrested if it was found. Defendant admitted to having brought the joint, and he then consented to a search of his car which produced more marijuana. The consent was not coerced or involuntary. State v. Garcia, 143 Idaho 774, 152 P.3d 645 (2006):

Initially, it should be noted that bowing to events, even if one is not happy about them, is not equivalent to being coerced. United States v. Miller, 589 F.2d 1117, 1132 n.13 (1st Cir. 1978). The voluntariness of consent is not impaired simply because one is faced with two unpleasant choices--which here, Garcia argues, was choosing between consenting to the search and allowing the marijuana in his truck to be discovered and not consenting and risking arrest of himself and his companions. In State v. Abeyta, 131 Idaho 704, 963 P.2d 387 (Ct. App. 1998), this Court addressed the voluntariness of consent to search in light of police threats to obtain a search warrant. Id. at 708-09, 963 P.2d at 391-92. There, the appellant's choice boiled down to consenting to a search or having his premises searched pursuant to a warrant--two unappealing options for one who knew incriminating evidence would be found. This Court found the threat of securing a search warrant "does not necessarily render consent involuntary, [although] it is clearly a significant factor in determining whether consent to search was freely and voluntarily given." Id. at 708-09, 963 P.2d at 391-92. In viewing the threat in light of all the circumstances, we concluded it was appropriate for officers to inform an individual of the police's ability and intent to seek a search warrant as long as they "did not falsely or erroneously state they had a legitimate right to search his residence." Id. at 709, 963 P.2d at 392. Accord Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (holding consent is coerced where obtained after an officer asserts he has a warrant when, in fact, he does not). Accordingly, we concluded the officer's threat to seek a search warrant was legitimate because, under the totality of the circumstances, the evidence gathered by the officer prior to the threat being vocalized provided requisite probable cause to support the acquisition of a search warrant. Id. See also United States v. Agosto, 502 F.2d 612, 614 (9th Cir. 1974) (statement of officer's intention to obtain search warrant if consent was not given did not render consent per se involuntary).

Similarly, an officer's implied or explicit offer not to arrest a suspect if he "turns over what he has" is not coercive if it merely informs the suspect of the officer's intention to do something that is within the officer's authority based on the circumstances. See State v. Medenbach, 48 Ore. App. 133, 616 P.2d 543, 545 (Or. App. 1980) ("[T]he action of the officer in advising defendant that he would be arrested unless he agreed to take some field sobriety tests was not constitutionally objectionable coercion because the trooper then had probable cause to arrest defendant for driving under the influence. Therefore, the officer threatened 'only to do what the law permitted him to do.'"). Again, the district court in this case found the statement was in effect "Turn over what you have, and we'll cite you" and "If you do not turn over what you have and if, in fact, you have drugs on you, then you're going to be subject to arrest." Thus, an initial inquiry here is whether the officers had probable cause to actually effectuate an arrest.

Police had a DV report by a wife that required an arrest under Wisconsin law. She also told the police that her husband had drugs and guns in the house. The victim consented to a search of the house and gave them a key to enter. Police went to the house and obtained entry by a ruse that the defendant's wife had been in a car wreck and the police wanted to talk to him. Once inside, defendant was arrested, and the consent was valid for the search that produced guns and drugs. United States v. DiModica, 468 F.3d 495 (7th Cir. November 16, 2006).*

Anonymous uncorroborated tip was insufficient for a stop. United States v. Melvin, 2006 U.S. Dist. LEXIS 83034 (M.D. Ala. November 14, 2006):

The court concludes that, in this case, the United States has failed to establish that officer Crooks had reasonable, articulable suspicion sufficient to justify stopping Melvin. "Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the "totality of the circumstances -- the whole picture." Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). See also United States v. Heard, 367 F.3d 1275, 1278 (11th Cir. 2004). The undisputed evidence at the hearing demonstrated that Crooks stopped Melvin simply because Herring said "the guy you are looking for is in that car." (Evid. Hr'g Tr. at 10).

Q: What did you do when they pointed to that car and said the person that you are looking for was in that car?

A: I pulled out behind it, ma'am, and started following it.

(Evid. Hr'g Tr. at 12).

Without more, Herring's statement is simply insufficient to support the stop. The United States did not present any evidence that at the time Crooks stopped the car, he relied on any other information which he had or that he made any attempt to connect that information to the Herring's statement about the "guy" in the teal-colored car. Consequently, the court concludes that these facts are insufficient as a matter of law to give rise to a reasonable suspicion that criminal activity was afoot and the defendant was involved.


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