Is a suspect’s race relevant when determining whether the suspect’s consent to search is voluntary? In a recent case, the court of appeals stated that it may be. Continue reading
Tag Archives: consent searches
To be valid, consent to search must be voluntary. Is consent voluntary when given after an officer thrreatens to obtain a search warrant if consent is withheld?
Generally, yes. See State v. Kuegel, 195 N.C. App. 310 (2009) (consent to search was given voluntarily even though officer said that if consent was denied he “would leave two detectives at the residence and apply for a search warrant”); State v. Fincher, 309 N.C. 1 (1983) (the defendant consented voluntarily where he “was told that although he did not have to give permission to search, if he refused the officers would obtain a search warrant and conduct a search”); United States v. Comstock, 531 F.3d 667 (8th Cir. 2008) (finding that under the totality of the circumstances, the defendant voluntarily consented even though “the officers apparently stated that if [he] refused to consent to the search they would obtain a search warrant, during which time [he] would continue to be detained in handcuffs for an additional two hours”); United States v. Garcia, 890 F.2d 355 (11th Cir. 1989) (“The agents simply told Garcia that they would secure the house and attempt to obtain a search warrant if he refused consent. We find nothing in this statement which would indicate that the agents were trying to do anything more than lawfully request Garcia’s permission to search.”).
Of course, voluntariness is determined under the totality of the circumstances, and there is some out-of-state authority suggesting that a threat to obtain a search warrant is a factor weighing against voluntariness, even if it is not alone sufficient to tip the scales. United States v. Kim, 25 F.3d 1426 (9th Cir. 1994) (when “officers claim that they could obtain a search warrant,” this is a factor that “militate[s] against . . . voluntariness”). This may be especially true if the officer making the threat has no basis for obtaining a warrant. United States v. White, 979 F.2d 539 (7th Cir.1992) (“Baseless threats to obtain a search warrant may render consent involuntary. When the expressed intention to obtain a warrant is genuine, however, and not merely a pretext to induce submission, it does not vitiate consent.”).
Of course, if an officer claims that he already has a search warrant, when in fact he does not, the situation is different. Bumper v. North Carolina, 391 U.S. 543 (1968), holds that the state’s obligation of proving voluntariness of consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority,” as when “consent” is given only after an officer falsely claims to have a warrant.
The scope of a suspect’s consent to search is determined objectively, by “what . . . the typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248 (1991). There is a split of authority regarding whether a reasonable person would understand consent to search a residence as including consent to search associated outbuildings. Compare, e.g., State v. Billups, 575 P.2d 323 (Ariz. 1978) (consent to search house did not include search of shed behind house), with, e.g., Commonwealth v. Eckert, 368 A.2d 794 (Pa. 1976) (consent to search residence did include search of storage shed). See generally 4 Wayne R. LaFave, Search and Seizure § 8.1(c) (4th ed. 2004) (discussing split and expressing “serious question” about the result in Eckert).
Until this week, no North Carolina appellate court had ruled on this issue. That changed in State v. Hagin. In Hagin, officers suspected the defendant of manufacturing methamphetamine, so they went to his house and asked for consent to search. The defendant signed a form consenting to a search of “the personal or real property” at the defendant’s address, described as a “[s]ingle wide mobile home, brown in color with a covered wooden porch.” The officers searched the mobile home, apparently finding nothing. Then, accompanied by the defendant, they searched “a small outbuilding located approximately 15-20 feet from the back porch of the mobile home,” finding materials used in manufacturing methamphetamine.
The defendant was charged with manufacturing methamphetamine. He moved to suppress, arguing that the search of the shed exceeded the scope of his consent. The motion was denied, and the defendant pled guilty, reserving his right to appeal.
The court of appeals affirmed. It noted that in the search warrant context, a warrant for a residence generally authorizes the search of associated outbuildings. State v. Travatello, 24 N.C. App. 511 (1975) (“The search of defendant’s premises did not exceed the scope of the warrant by including a tool shed as well as the house itself.”); State v. Trapper, 48 N.C. App. 481 (1980) (warrant directing officer to search “housetrailer” included a shed 30 feet away from the trailer because it was within the trailer’s curtilage). The court found these cases analogous, and adopted the same rule for consent searches.
The court also emphasized that the “defendant made no objection to the search of the outbuilding,” finding this to be “some evidence that at the time of the search he believed the outbuilding to be within the scope of his consent.” One could reasonably argue that the defendant’s after-the-fact behavior shouldn’t matter beacuse the scope of consent is determined by “the exchange between the officer and the suspect,” and that the defendant’s view about the scope of consent shouldn’t matter because the scope is to be determined objectively. Still, a number of courts have found a defendant’s acquiescence or nonacquiescence relevant in determining whether a particular search exceeded the scope of the defendant’s consent. See, e.g., State v. Stone, 362 N.C. 50 (2007) (defendant objected to search of his underwear after giving general consent to a search of his person; “while not dispositive of the reasonableness of the search, [defendant’s objection] is an indication that it exceeded his expectations”); United States v. Neely, 564 F.3d 346 (2009) (per curiam) (good discussion of when acquiescence is relevant and when it is not); LaFave, supra (relevant whether “the consenting party stands by and watches that activity without voicing any objection”).