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Voluntary consent... while under arrest

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October 04, 2009, 04:55
Voluntary consent... while under arrest
Does anyone know of any case law regarding the granting of consent to search a vehicle / room / etc from a person who has already been placed under arrest. The person does have authority to grant the consent. Heck, let's make this easy and even have them standing next to the vehicle while it's being searched.

I have some question as to whether the consent would hold up but it's more a matter of it giving me a slight bad taste in my mouth than straightforward knowledge.

Anyone have thoughts?

October 04, 2009, 12:34
John B. Lyons
Was the consent given freely and without any threats, coercion, or promises? Was it given in writing or was it verbal? Did you record it on your patrol car camera or with a digital pocket recorder? Was there a witness to the consent if it wasn't recorded?

What's giving you the bad taste in your mouth? Is the fact that he's under arrest clouding your judgment, or is there something else that you haven't told us?
October 05, 2009, 15:11
I couldn't find a case about being under arrest in my consent folder, but I did find a case that says coercion is more than just talking them into it. Basically, when the law says voluntarily, the lack of voluntary is coercion, and that is a big word--and difficult to prove. Being under arrest would not be considered coercion.

I think this issue doesn't come up that often because if you are talking about searching after an arrest there are so many other ways to justify searches of a person or the vehicle that the consent is really irrelevant. I guess if the vehicle was not inventoried and towed and items were found in the trunk, then consent would be the last ditch attempt.

I did some research for a presentation to officers a year ago about consent and basically what I thought was that appellate courts do their own "smell test" and then apply the law accordingly depending on whether their noses wrinkled or not. If you want the cites, e-mail me and I will send them to you.

There was actually one case where the court thought it was less coercive to take a defendant to a hotel room in order to obtain consent, rather than right out there in the road. Go figure....and yet it was outside the scope of consent to pick up the key found on the ground that had been dropped by the defendant when he gave consent to search the whole car, but said he lost his trunk key. The cop picked a key up off the ground and opened the trunk--court said that was a bad search. So it's a very subjective area, it seems.
October 05, 2009, 15:31
John Greenwood
I can not say I have looked in a while, but my recollection is that custody is one factor of many to be considered in determining if consent to a search was voluntary. Age, education and intelligence of the suspect; giving Miranda; length of the detention; repetitive questioning; use of physical force; and I'm sure the list goes on of the factors to be considered in determining voluntariness. Voluntary being the key to any consent search. I think the issue will come up more and more give a recent SCOTUS opinion limiting search incident to arrest.

[This message was edited by John Greenwood on 10-05-09 at .]
October 06, 2009, 05:53
Lyons: All those conditions were met and I don't believe I'm demonstrating any clouded judgment by simply asking a question. I'd think any decent defense attorney would have a good foothold in arguing duress, etc when a search was conducted based on consent granted after being placed under arrest. However, I'm simply a layman applying it on the street so perhaps I am over thinking this. I am only looking for ways to help my officers mitigate an issues if any exist. My thoughts at the time were that it is supported under case law generally but, in my mind, opens up a few issues.

Appreciate the input from jost and Greenwood. These were more or less the questions that popped into my head while reading the report but I could not think of anything that would preclude the search... it just gave me pause or rather "made my nose twitch" a bit.

This post came after two consecutive reports where in one, the arrestee was seated in the back of a car after granting consent and the other was allowed to stand next to the car (two different officers) which started my mind whirling on the matter as a whole.

Again, thanks for the input. I'd rather over-think the matter beforehand than sit in court trying to explain it later.

October 06, 2009, 17:35
John B. Lyons
Chris, My inference was not meant to be critical. I see a lot of officers who think standards change when the person is under arrest. That's what I was referring to when I asked about clouded judgment. I'm glad to see that you're thinking ahead as you read and approve reports. Too many supervisors just sign off on reports.
October 09, 2009, 09:40
East Texas Attorney
Here are some cases on a brief I wrote several years ago

When an individual is illegally arrested, the taint on any evidence seized can be attenuated by intervening factors. In reviewing whether the taint has been attenuated, the United States Supreme Court has said that courts should look at whether Miranda warnings have been given; the time between the arrest and the recovery of the evidence; any intervening circumstances and why and how flagrant was the official misconduct. Brown v. Illinois, 422 U.S. 590, 598-99, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). One such method of attenuation is consent to search. Larson. V. State, 890 S.W.2d 200 (Tex. App�Texarkana 1994). The State must prove by clear and convincing evidence the consent was voluntarily given. Larson, 890 S.W.2d at 203. Whether consent was validly given is a question of fact and a court should review all the circumstances. Ohio v. Robinette, 519 US 33, 40, 117 S. Ct. 417 (1996); Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). The consent must be positive, unequivocal and without a showing of duress or coercion. Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991). Voluntariness must be shown by clear and convincing proof looking at the totality of the circumstances. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Courts should look at various factors, including; was the person in custody, was he arrested at gunpoint, did the person have the option to refuse consent, was the person given constitutional advice, how long was the person detained, how often was the person questioned, was physical punishment used and what are the consenting person�s characteristics. See Laney v. State, 76 S.W.3d 524, 532 (Tex. App.�Houston [14th Dist.] 2002, aff�d 117 S.W.3d 854 (Tex. Crim. App. 2003). Officers do not have to inform an individual of his right to refuse consent. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041; 36 L. Ed. 2d 854 (1973); Allen v. State, 487 S.W.2d 120, 121 (Tex. Crim. App. 1972). However, a showing that an officer has informed an individual of his right to refuse consent is a factor that weighs towards voluntariness. Meeks v. State, 692 S.W. 2d 504, 510 (Tex. Crim. App. 1985); Allridge, 850 S.W.2d at 493.