ATF raids polymer 80.

[TC215]

Are you dyslexic? LOL The court ruled the search was not consensual due to them saying 'we have a warrant.' How that compares to 'I'll ask the judge if he'll issue a warrant" goes over my head.

I’m aware of what the case says, and what it doesn’t say. Am I going to have to do all your research for you? Bumper is referenced in many cases and scholarly articles about coerciveness, consent, and “threats” to obtain a search warrant.

A broader view of Bumper, however, shows a strong similarity between cases in which the police already have a warrant and those in which the police merely threaten to obtain one. In Bumper, the Court found consent was obtained coercively because "[w]hen a law enforcement official claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.,

If police officers tell a subject of a search that they are in the proc* ess of getting a search warrant, or will be applying for a search warrant to search her home and then ask for consent, it seems that the case would be similar to Bumper, in that "when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search." Surpris* ingly, courts have not held that Bumper invalidates consent when an officer informs the consenter that he will obtain a search warrant.

[DDTSGM]

I have one of the varying opinions. If I think I have PC to search the vehicle, I may still ask for consent, likewise if necessary I will also articulate the need for an inventory search before a tow. All will get explained in my report. Its a belt and suspenders approach.

What percentage of folks have refused your request for consent only to have you search based on PC? How many of those have gone to court.

In that situation if the defense wants to claim I was wrong to search, they have to show every justification I gave was wrong, not just one.

Again, what number of the defense claims that you were wrong to search were based on a PC search after consent was refused. It is one thing to refute defense objections based on consent searches by outlining your PC, it's another to defend a PC search after consent was denied.

Further, getting consent is less confrontational than merely demanding someone submit to the search. Getting consent gives the suspect some feeling of participating in the decision (they don't need to know in the moment that it wasn't required), and it can sometimes keep things calm, or at least calmer, than just launching into a search without consent. I'd much rather have suspects stay as calm possible. Generally its safer for everyone that way.

First, that concept, while true in theory, is kind of negated by the patrol car videos we have of officers getting beat down, shoot, etc. by folks who have consented to a search.

Calm suspects are good, what's even better is a back up officer doing nothing but watching the suspect(s).

Ever ask yourself why a guy with a trunk full of dope consented to your search? Common sense would tell us that if a person knew they could refuse consent, they would. Often it's because they are panic stricken, too stressed out to think of another alternative. Sometimes they are going with the flow, waiting for an opportunity to pounce. Either way, these folks are dangerous if you let your guard down for a moment.

https://www.youtube.com/watch?v=2FraE77l4fI

[ssb]

Nothing wrong with saying you're going to attempt to get a warrant, or seek a warrant.

I normally only mention it if someone asks what will happen if they refuse consent, and I feel like I have PC. I normally throw in a "I don't know if the judge will give me one..." or whatever. And I make sure the conversation is being recorded.

There is some fairly recent state level case law from DUI land that holds that factual statements of the law - though they may seem coercive - do not otherwise invalidate consent. You may recall that some of our older implied consent forms threatened certain subjects with a separate criminal offense upon refusal, under a previous version of the statute. The CCA ruled that a mere factual statement of the law did not invalidate otherwise-voluntary consent.

Having said that, I still don’t like it under the voluntariness analysis we use. But, with the above in mind, saying some variation of “I can get a warrant” seems to be pretty solid ground to me. The reason I don’t like it is because in my experience, a statement that an officer will get a warrant will draw some flak from defense counsel (as will searching under PC but asking for consent - they’ll allege you didn’t have PC and that the consent was not freely and voluntarily given, which means the officer gets to spend a few hours on the stand while lawyers try to make them say the magic words needed for their arguments).

Thankfully, I don’t have to litigate consensual blood draws nearly as often anymore.

[Coyotesfan97]

I also used to have K9 do a free-air sniff after they arrived, even if I had consent, just in case the driver revoked it.

I’ve done a lot of free air sniffs on consent searches. It’s nice when the dog hits. It’s funny doing free air sniffs and how many people think it’s a search. I’d usually tell them to google free air sniffs.

[TC215]

There is some fairly recent state level case law from DUI land that holds that factual statements of the law - though they may seem coercive - do not otherwise invalidate consent. You may recall that some of our older implied consent forms threatened certain subjects with a separate criminal offense upon refusal, under a previous version of the statute. The CCA ruled that a mere factual statement of the law did not invalidate otherwise-voluntary consent.

Having said that, I still don’t like it under the voluntariness analysis we use. But, with the above in mind, saying some variation of “I can get a warrant” seems to be pretty solid ground to me. The reason I don’t like it is because in my experience, a statement that an officer will get a warrant will draw some flak from defense counsel (as will searching under PC but asking for consent - they’ll allege you didn’t have PC and that the consent was not freely and voluntarily given, which means the officer gets to spend a few hours on the stand while lawyers try to make them say the magic words needed for their arguments).

Thankfully, I don’t have to litigate consensual blood draws nearly as often anymore.

Yeah, it’s been over 10 years since I was doing DUI stops, but I remember when the implied consent changes came around.

Again, the only times I’ve ever “threatened” a warrant has been when someone has asked what would happen if they refused consent. If I had PC, I’d tell them I would apply for a warrant, which a judge may or may not grant. Sometimes I’d have to go get a warrant, sometimes I’d get consent. It’s never been an issue either way.

[Coyotesfan97]

At my agency we’ve been writing search warrants for implied consent refusals for a long time. We started with telephonic warrants and now they’re web based template. I never wrote one on the new system but it looked pretty easy. I don’t think a lot of the DUI hounds spend any time convincing a suspect to consent. They read them implied consent and shrug at the refusal. Then they just explain what the process is. The suspect gets a year of suspension and they get the blood sample from the search warrant.

[DDTSGM]

Am I going to have to do all your research for you?

In this case, yes, if you want me to change my mind. No big deal, I'm no longer a practitioner.

ETA: Sorry for the thread drift this is way off topic from polymer80.

[BehindBlueI's]

I'm of the mind that once you mention a warrant, any capitulation to consent is coerced.

Are you dyslexic? LOL The court ruled the search was not consensual due to them saying 'we have a warrant.' How that compares to 'I'll ask the judge if he'll issue a warrant" goes over my head.

It's pretty simple, really. Your first statement is wrong as far as the courts go, and that was the answer you got...that the courts don't agree not that you can't have a personal opinion. The judge also clearly defines why the wording is different.

"I'll get a warrant" implies that regardless of if you consent or not a search will take place, therefore your consent is meaningless.

"I will seek a warrant, which may or may not be granted" does not imply the same thing. It is factual in nature and recognizes that a warrant may not be granted so the decision to give consent or not may affect the outcome. It's also the exact wording I'd use if someone asked what would happen if they said no, so it's very easy to differentiate as educational, not confrontational. Which is why I used the specific phrasing.

"Just get a warrant" is much easier today with e-warrants that can be gotten from everywhere. For the vast majority of the time I was a detective I had to physically go in front of a judge or magistrate to get a warrant, which sometimes made consent searches an attractive option.

I have one of the varying opinions. If I think I have PC to search the vehicle, I may still ask for consent, likewise if necessary I will also articulate the need for an inventory search before a tow. All will get explained in my report.

FWIW, we don't use the term "inventory search" any longer, despite that being the phrasing for years. The courts in my state are looking at them harder and harder each year, and since 'search' has a specific legal meaning independent of the common use, we now just refer to them as 'inventories' and the report cannot say 'search' and must also spell out that you followed all the rules making the vehicle eligible for an inventory. I would be surprised if this doesn't spread over the years, but maybe it won't and it'll be another state-specific oddity like Pirtle.

[TC215]

In this case, yes, if you want me to change my mind. No big deal, I'm no longer a practitioner.

I don't care if you change your mind or not, but I am a proponent of actually knowing what we, as law enforcement, can and cannot do under the law.

Here is one such example:

Idaho v. Kilby, 947 P.2d 420 (Idaho 1997) (rejecting defendant's argument that Bumper invalidated his consent when a police officer told defendant that he would apply for a search warrant if defendant refused consent).

Kilby cites the United States Supreme Court's holding in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) in support of his challenge.   In Bumper, the owner of a house consented to a search when she was told by officers that they had a search warrant.   The prosecution then relied upon the search being valid based upon the consent given.   The United States Supreme Court reversed the conviction, holding:

A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid․

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.   The situation is instinct with coercion-albeit colorably lawful coercion.   Where there is coercion there cannot be consent.

Bumper, 391 U.S. at 549-50, 88 S.Ct. at 1792 (footnote omitted).   Kilby claims the facts of his case concerning the consent issue are much more compelling than those stated in Bumper.

 Our standard for reviewing a trial court's ruling on a suppression motion is bifurcated.   Although we accept the trial court's findings of fact where supported by substantial evidence, we freely review the application of constitutional principles to the facts as found.  State v. Birkla, 126 Idaho 498, 501, 887 P.2d 43, 46 (Ct.App.1994);  State v. Shepherd, 118 Idaho 121, 122, 795 P.2d 15, 16 (Ct.App.1990).

 A warrantless search may be conducted where there has been a voluntary consent to search.  “The burden is upon the state to show, by a preponderance of the evidence, that a defendant's ․ consent to search was given freely and voluntarily․  [T]he voluntariness of a consent to search must be determined from the totality of the circumstances.”  State v. Aitken, 121 Idaho 783, 784, 828 P.2d 346, 347 (Ct.App.1992) (citations omitted).   The fact that the defendant is in custody “has never been enough in itself to demonstrate a coerced ․ consent to search.”  Aitken, 121 Idaho at 785, 828 P.2d at 348, quoting United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976).

As found by the district court, Kilby lacked standing to challenge the initial search of his room at the Mountain Home residence and the evidence seized.   Because Kilby lacked standing to challenge the initial search, there remains no issue as to whether his subsequent consent purged the search warrant's deficiency.   We will address, however, whether Kilby's consent for the two subsequent searches was given freely and voluntarily.

 Detective Barry interviewed Kilby after Kilby had been arrested on one count of lewd conduct with a minor.   This charge stemmed from alleged sexual contact Kilby had with a four-year-old child at the day care.   During the course of this interview, detective Barry commented that he had seized certain materials from Kilby's room in Mountain Home and that he wanted to search Kilby's residence at King Hill and Kilby's vehicle.   Detective Barry also told Kilby that several of the children at the Mountain Home residence reported seeing pictures of naked children in Kilby's possession.

During this interview, detective Barry repeatedly told Kilby that Kilby did not have to consent to a search.   Detective Barry never told Kilby that the detective had a search warrant or that he had the right to search Kilby's residence at King Hill and his vehicle.   In fact, detective Barry told Kilby that if Kilby chose not to consent, detective Barry would have to obtain a search warrant.   The facts of this case are therefore distinguishable from Bumper, where the officers falsely or erroneously stated that they had a legitimate right to search the area where the incriminating evidence was discovered.   Accordingly, under the totality of the circumstances, we conclude that Kilby's consent to search his residence at King Hill and his vehicle at the Mountain Home residence was freely and voluntarily given.

FWIW, we don't use the term "inventory search" any longer, despite that being the phrasing for years. The courts in my state are looking at them harder and harder each year, and since 'search' has a specific legal meaning independent of the common use, we now just refer to them as 'inventories' and the report cannot say 'search' and must also spell out that you followed all the rules making the vehicle eligible for an inventory. I would be surprised if this doesn't spread over the years, but maybe it won't and it'll be another state-specific oddity like Pirtle.

Yep, the first thing I cover about inventory searches when teaching exceptions to the warrant requirement is to not call it a search. A buddy of mine got absolutely destroyed on the stand for using "inventory search" in an affidavit once.

[DDTSGM]

BBI - TC125: I get what you are saying, just don't think it is the way to conduct business, because something is legal doesn't necessarily mean it is morally correct.

My concern is the officer on a vehicle stop who doesn't have PC to search using the tactic, as in: 'What happens if I don't consent?' 'Then I'll apply for a warrant' when in fact the officer is on a fishing expedition, lacks PC, and has no intention of getting a warrant. I'm somewhat okay with using trickery and deceit in interrogation, I'm really not okay with it's application in consensual searches.

In my very humble, uneducated opinion, this is happening with consent searches:

But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For no matter how subtly the coercion was applied, the resulting "consent" would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. In the words of the classic admonition in Boyd v. United States, 116 U. S. 616, 116 U. S. 635:

"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close
and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon."

They've failed.