CACI 3025 Affirmative Defense—Consent to Search

California Civil Jury Instructions CACI

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

Crowdsource Lawyers

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 omitted.)

“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.” (Whalensupra, 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)