California Civil Jury Instructions (CACI)

3005. Affirmative Defense - Consent to Search

[Name of defendant] claims that the search was reasonable and that a search warrant was not required. To succeed, [name of defendant] must prove both of the following:

1. That [[name of plaintiff]/[a person who controlled or reasonably appeared to have control of the area]] knowingly and voluntarily consented to the search; and

2. That the search was reasonable under the circumstances.

In deciding whether the search was reasonable, you should consider, among other factors, the following:

(a) The extent of the particular intrusion;

(b) The place in which the search was conducted; [and]

(c) The manner in which the search was conducted; [and]

(d) [insert other applicable factor].

Sources and Authority

"The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects. The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the premises." (Illinois v. Rodriguez (1990) 497 U.S. 177, 181 [110 S.Ct. 2793, 111 L.Ed.2d 148], internal citations omitted.)

" '[C]ommon authority' rests 'on mutual use of the property by persons generally having joint access or control for most purposes . . . .' The burden of establishing that common authority rests upon the State." (Rodriguez, supra, 497 U.S. at p. 181, internal citation omitted.)

"Where the subject property is a premises occupied by more than one person, a search will be reasonable if consent is given by one of the joint occupants 'who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.' This is so, even where the defendant has not consented to the search. Further, even if the consenting cotenant, in fact, lacks authority, officers may rely on his or her apparent authority." (People v. Oldham

(2000) 81 Cal.App.4th 1, 9-10 [96 Cal.Rptr.2d 343], internal citations omitted.)

"Where consent is relied upon to justify the lawfulness of a search, the government 'has the burden of proving that the consent was, in fact, freely and voluntarily given.' 'The issue of whether or not consent to search was freely and voluntarily given is one of fact to be determined on the basis of the totality of the circumstances.' " (U.S. v. Henry (9th Cir. 1980) 615 F.2d 1223, 1230, internal citations omitted.)

"Whether consent was voluntarily given 'is to be determined from the totality of all the circumstances.' We consider the following factors to assess whether the consent was voluntary: (1) whether the person was in custody; (2) whether the officers had their guns drawn; (3) whether a Miranda warning had been given; (4) whether the person was told that he had the right not to consent; and (5) whether the person was told that a search warrant could be obtained. Although no one factor is determinative in the equation, 'many of this court's decisions upholding consent as voluntary are supported by at least several of the factors.' " (U.S. v. Reid (9th Cir. 2000) 226 F.3d 1020, 1026-1027, internal citations omitted.)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 706 et seq.

(New September 2003)