CACI No. 3025. Affirmative Defense - Consent to Search

Judicial Council of California Civil Jury Instructions (2023 edition)

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3025.Affirmative Defense - Consent to Search
[Name of defendant] claims that the search was reasonable and that a
search warrant was not required because [name of plaintiff/third person]
consented to the search. To succeed, [name of defendant] must prove both
of the following:
1. That [[name of plaintiff]/[name of third 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 all of the circumstances.
[[Name of third person]’s consent is insufficient if [name of plaintiff] was
physically present and expressly refused to consent to the search.]
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(s)].
New September 2003; Revised April 2009; Renumbered from CACI No. 3005
December 2012
Directions for Use
Give the optional paragraph after element 2 if the defendant relied on the consent of
someone other than the plaintiff to initiate the search. (See Georgia v. Randolph
(2006) 547 U.S. 103, 106 [126 S.Ct. 1515, 164 L.Ed.2d 208].)
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.” (Illinois v. Rodriguez,
supra, 497 U.S. at p. 181, internal citation omitted.)
“The Fourth Amendment recognizes a valid warrantless entry and search of
premises when police obtain the voluntary consent of an occupant who shares, or
is reasonably believed to share, authority over the area in common with a co-
occupant who later objects to the use of evidence so obtained. The question here
is whether such an evidentiary seizure is likewise lawful with the permission of
one occupant when the other, who later seeks to suppress the evidence, is
present at the scene and expressly refuses to consent. We hold that, in the
circumstances here at issue, a physically present co-occupant’s stated refusal to
permit entry prevails, rendering the warrantless search unreasonable and invalid
as to him.” (Georgia, supra, 547 U.S. at p. 106, 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
“According to [defendant], ‘express refusal means verbal refusal.’ We disagree,
as this interpretation finds no support in either common sense or the case law.”
(Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 875.)
“In determining whether a person consented to an intrusion into her home, we
distinguish between ‘undercover entries, where a person invites a government
agent who is concealing that he is a government agent into her home, and ‘ruse’
entries, where a known government agent misrepresents his purpose in seeking
entry. The former does not violate the Fourth Amendment, as long as the
undercover agent does not exceed the scope of his invitation while inside the
home. But ‘[a] ruse entry when the suspect is informed that the person seeking
entry is a government agent but is misinformed as to the purpose for which the
agent seeks entry cannot be justified by consent.’ (Whalen v. McMullen (9th
Cir. 2018) 907 F.3d 1139, 1146-1147, internal citations omitted.)
“Because he entered the home while using a ruse and not while undercover, it is
immaterial that he stayed within [plaintiff]’s presence in the home and did not
conduct a broader search. He did not have consent to be in the home for the
purposes of his visit.” (Whalen,supra, 907 F.3d at p. 1150.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892, 893
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)

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