Section 9.27 Consent

• Library: Criminal Practice 2012 Supp

2. (§9.27) Consent

One of the most important exceptions to the requirements of a warrant and probable cause is consent, which frequently appears as “an attractive alternative” to police. 4 Wayne R. LaFave, Search and Seizure § 8.1 (4^th ed. 2004). The Court has been less than clear over the years, however, on precisely what the basis for the consent exception is. This ambivalence has led to some confusion and lack of clarity in interpretation.

“Consensual searches conducted without a search warrant do not violate the Fourth Amendment . . . ,” State v. Lacy, 851 S.W.2d 623, 626 (Mo. App. E.D. 1993), “even though . . . not otherwise supported by probable cause or reasonable suspicion of criminal activity.” State v. Cook, 854 S.W.2d 579, 582 (Mo. App. S.D. 1993) (quoting State v. Hyland, 840 S.W.2d 219, 221 (Mo. banc 1992)). The Fourth Amendment proscribes only those searches that are unreasonable, and “it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.” Cook, 854 S.W.2d at 582 (quoting Fla. v. Jimeno, 500 U.S. 248, 250–51 (1991)). Warrantless searches based on consent appear to be based, at least in large part, on the concept that it is reasonable to allow the individual to decide to cooperate with the police rather than stand on Fourth Amendment rights.

“A consent to search is valid only if it is freely and voluntarily given.” Hyland, 840 S.W.2d at 221. “Consent is freely and voluntarily given if, considering ‘the totality of all the surrounding circumstances,’ . . . the objective observer would conclude that the person giving consent made a free and unconstrained choice to do so.” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). AccordState v. LaFlamme, 869 S.W.2d 183, 187 (Mo. App. W.D. 1993). The voluntariness of consent is to be determined from all the circumstances, and the burden is on the government to prove the validity of the consent. Lacy, 851 S.W.2d at 627; see also State v. Riddle, 843 S.W.2d 385, 387 (Mo. App. E.D. 1992). Although courts frequently use the terms consent and waiver interchangeably, see, e.g., State v. Engel, 859 S.W.2d 822, 826 (Mo. App. W.D. 1993) (“[a] party may agree to a search and thereby waive his constitutional right to the display of a warrant”), it is clear that consent is not the equivalent of waiver and, thus, does not require the intentional relinquishment of a known right. Schneckloth, 412 U.S. at 235–46.

“In determining whether a consent search is valid and not coerced, several factors must be considered.” Engel, 859 S.W.2d at 826. These include:

· the defendant’s ability to communicate in English, State v. Garcia, 930 S.W.2d 469, 472–73 (Mo. App. S.D. 1996);

· the number of officers present;

· the degree to which the officers demonstrate their authority;

· whether officers used or displayed weapons;

· whether the individual was in custody;

· whether there was any fraud or deception on the part of the police;

· factors relevant to the background of the individual; and

· acts and statements of the consenter.

Engel, 859 S.W.2d at 826; see alsoState v. Stolzman, 799 S.W.2d 927, 936 (Mo. App. S.D. 1990). These factors must be viewed in the totality of circumstances, and none is determinative. While the defendant’s knowledge regarding a right to refuse is relevant, it is only part of the totality of circumstances and is not controlling. Schneckloth, 412 U.S. at 227.

Thus, the mere fact that more than one officer is present is not decisive, State v. Bunch, 787 S.W.2d 859, 861 (Mo. App. E.D. 1990), and the fact that the officers are large, armed men and the consenter is a small woman does not demonstrate “implied coercion” sufficient to vitiate consent. Absent evidence of threats, force, or actual intimidation, no coercion will be found. State v. McGee, 757 S.W.2d 321, 324 (Mo. App. W.D. 1988). The drawing of weapons by the police does not necessarily render consent given thereafter involuntary. Rather, the show of weapons is just one factor in the totality of circumstances. State v. Hernandez, 776 S.W.2d 34, 38–40 (Mo. App. S.D. 1989). Cf.State v. Corpier, 793 S.W.2d 430, 438 (Mo. App. W.D. 1990). When the party giving consent generally manifests a voluntary and cooperative attitude, it is unlikely that a finding of coercion will be made. See State v. Hunziker, 799 S.W.2d 610, 612 (Mo. App. W.D. 1990). A violation of Miranda v. Arizona, 384 U.S. 436 (1966), does not necessarily vitiate consent if it is otherwise voluntary, and, thus, a consent given after a defendant in custody has requested counsel may be constitutional. State v. White, 770 S.W.2d 357 (Mo. App. E.D. 1989).

In the past, it was believed that, if officers acted under a claim of authority, that claim by itself vitiated consent. Bumper v. N.C., 391 U.S. 543 (1968). While there remains some authority for the continued viability of this rule, it is more likely that a claim of authority is just one factor, albeit an important one, in determining the totality of the circumstances. 4 Wayne R. LaFave § 8.2(a) at 55–58. Courts continue to reiterate, however, that the state “does not...