Can you coerce a subject into allowing you to search his vehicle? When is consent voluntary – or not?
A defendant’s consent to search his or her vehicle obtained by threatening to impound the car absent such a consent, when impounding the car would not be lawful, invalidates the consent.
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Consensual vehicle searches
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False promises of leniency
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Community caretaking and the impoundment of vehicles
A person’s consent to allow officers to search his or her vehicle is not voluntary under circumstances where the consent obtained is the product of coercion. Threatening to tow their vehicle where to do so would be illegal constitutes coercion.
Defendant Juan Boitez was driving his mother’s car when he was pulled over by a city of Winters (Yolo County) police officer for failing to stop at a stop sign. Although he stopped his vehicle with his right tires more than 18 inches from the curb, being in a residential cul-de-sac, the car was not in a position where it might impede traffic. With the following events video recorded by the officer’s body camera, Boitez was asked for his license, registration, and proof of insurance. He responded that he had none of these documents, showing the officer a California identification card instead. It was quickly determined that Boitez’s license had been suspended. The sole passenger in the car did not have a license. A second officer arrived at the scene approximately 3½ minutes into the contact. A third officer also responded, although it was not indicated at what point he showed up.
Upon questioning Boitez, officers determined he was a gang member, but he claimed to no longer be active. He also believed that he “might” be on probation. The officers, however, likened the Boitez and his companion to “dirty dudes,” using this characterization several times. During the contact, Boitez’s sister arrived on the scene, having been called by Boitez when he was initially stopped. She had a license and was available to drive the car from the scene, if need be.
Continuing the contact with Boitez, the officer told him that he could have the car towed if he chose, but was “trying to cut (him) a little bit of a break,” asking Boitez at the same time if he minded whether the officer searched his car. Without waiting for a response, the officer asked Boitez: “You don't have nothing in there? There’s no guns, drugs, anything like that? Nothing, nothing bad ” Boitez did not answer, but instead simply looked toward the ground and shook his head from side to side.
The officer had Boitez sit on the curb, telling him he was going to write him a ticket for driving on a suspended license, but was not going to tow his car. Commenting that that was “a pretty good deal,” he then told Boitez that if he did tow the car, he wouldn’t get it back until Monday and would owe a fee for some two or three days for the storage.
Boitez, still looking down, nodded his head and said: “Alright.” Boitez then asked whether his sister could take the car. The officer responded: “That’s what I’m trying to work out with you, man. You be cool with me brother, I’ll be cool with you.” Boitez again nodded his head and said “Yeah,” apparently giving permission to search the car. The officer asked Boitez whether he was “good with that” and, while Boitez was nodding, asked, “Is that fair ” Boitez again responded, “Yeah.”
This equivocal conversation continued back and forth for several minutes, with the officer telling Boitez what a good deal he was getting, and Boitez, somewhat reluctantly, implying agreement with the officer that allowing a search of the car in exchange for not impounding it was, in fact, a good deal. Eventually, officers searched the car. A loaded gun was found under the passenger’s seat. A second gun was thereafter recovered from the passenger. Boitez was charged in state court with being a felon in possession of a firearm and other gun-related offenses. His motion to suppress the firearm was denied by the trial court. Boitez filed a pre-trail petition for writ of mandate with the court of appeal.
The Third District Court of Appeal granted Boitez’s petition, ruling that the search of his car was illegal under the circumstances.
Specifically, Boitez argued that his consent to search the car was involuntary because it was acquired through the threat of unlawful police action, i.e., the officer’s false statement that he had authority to tow the car, and that he would do so unless Boitez consented to having it search at the scene.
The People conceded that the officer did not have authority to tow the car, but argued nonetheless that the totality of the circumstances “allow[s] a finding of voluntary consent.”
In rejecting this argument, the court accepted the People’s concession that the officer did not have authority to tow the vehicle, noting that “[t]he decision to impound [a] vehicle must be justified by a community caretaking function other than suspicion of evidence of criminal activity.” Although the car was parked illegally (the front wheels being more than 18 inches from the curb), it was not blocking traffic. Nor did it create a driving hazard. Further, there was no indication that if left there, it might be subject to theft or vandalism. And lastly, defendant’s licensed sister was present and available to drive the car away.
The court further held that it was irrelevant whether the officer actually harbored an “honest but mistaken belief that he could (lawfully) tow the car.” A subject’s alleged “voluntary consent cannot be based on the subjective good faith of an officer in making a representation that induced the consent to search.” The U.S. Supreme Court has held that “If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” (Beck v. Ohio (1964) 379 U.S. 89, 97.) “Thus, ‘whether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of [a defendant’s] election to abandon his [her, or their] rights.’” (Moran v. Burbine (1986) 475 U.S. 412, 423.)
With these basic rules in mind, the court proceeded to analyze the voluntariness of Boitez’s consent given (albeit reluctantly) to the officer to search his car. As analyzed by the court the officer made a “false promise of leniency,” telling Boitez in a roundabout way that if he consented to having his car searched, the officer would not have it towed. This threat was made despite that the officer, whether he recognized this or not, could not legally tow the car.
The officer’s promise not to tow the car was found to be “a material and inextricable part of the agreement to consent to the search.” The court thus concluded that under “the totality of the circumstances,” Boitez’s consent to search the car was not voluntary.
The court further ruled that it is not an issue of whether the circumstances might “allow” for a finding of a voluntary consent, as argued by the People, but rather whether the prosecution had met its burden of showing by a “preponderance of the evidence” that Boitez’s consent was voluntary under the circumstances. The court ruled that the People failed to meet this burden of proof.
The court provides several more pages of legal reasoning as to why Boitez’s consent was not voluntary. Included is that “coercion” is not limited to physical abuse. Also relevant is the number of officers at the scene, whether Boitez was in custody, the use of deception or communication of false information, the use of handcuffs and/or guns, and a whole bunch of other factors that may or may not be relevant to a case such as this one.
The bottom line is that the defendant in this case was not really given a choice. He had to consent to the search of his car or suffer the inconveniences and costs of having his (or rather, his mother’s) car impounded (at which point, by the way, it would have been searched anyway).
But note the other side of this coin. Not mentioned is the fact that if the officer did have the legal right to impound the car, threatening to do so probably would not have invalidated the subsequent consent to search. Threatening a consequence the officer may lawfully cause to happen generally will not invalidate the resulting consent. (See People v. Robinson (1957) 149 Cal.App.2nd 282, 286; People v. Goldberg (1984) 161 Cal.App.3rd 170, 188; Bumper v. North Carolina (1968) 391 U.S. 543 [88 S.Ct. 1788; 20 L.Ed.2nd 797] United States v. Soriano (9th Cir. 2003) 361 F.3rd 494, 971; People v. Williams (2007) 156 Cal.App.4th 949, 961.)
But in this case, Juan Boitez was pretty much brow-beaten into consenting, under the threat of having something happen that the officer had no right to do. The ultimate result was pretty clear-cut.