California Civil Jury Instructions (CACI) (2017)

3025. Bane Act (Civ. Code, § 52.1) - Essential Factual Elements

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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
• “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.)
• “ ‘The test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application. In each case it requires a balancing
of the need for the particular search against the invasion of personal rights that
the search entails. Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place
in which it is conducted.’ ” (Sacramento County Deputy Sheriffs’ Assn. v.
County of Sacramento (1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834],
internal citation omitted.)
• “The Fourth Amendment proscribes only ‘unreasonable’ searches and seizures.
However, the reasonableness of a search or a seizure depends ‘not only on
when it is made, but also on how it is carried out.’ In other words, even when
supported by probable cause, a search or seizure may be invalid if carried out
in an unreasonable fashion. [¶] Whether an otherwise valid search or seizure
was carried out in an unreasonable manner is determined under an objective
test, on the basis of the facts and circumstances confronting the officers.”
(Franklin v. Foxworth (9th Cir. 1994) 31 F.3d 873, 875, original italics, internal
citation omitted.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)