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  1. #1
    Join Date
    Aug 2005
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    Virginia
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    Default Deception to get Consent to Search

    "In Graves v. Beto the defendant was told a blood sample was for an alcohol test but it was used to type his blood for comparison with blood stains in a rape investigation. The consent was involuntary."

    My question: Is consent considered voluntary if deception is used, i.e. I will not charge you for marijauana/crack/heroin if I find it during the consent search then charging the person. I understand the deception should be avoided but criminals are deceptive and most cases I have seen courts uphold the consent even if deception was used.

  2. #2
    Join Date
    Mar 2005
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    Michigan
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    Default Consent to Search

    Graves v. Beto, 424 F.2d 524 (5th Cir. 1970), is perhaps getting a bit long in the tooth. Since that time, the nation's courts have mostly (probably all; but I haven't checked) adopted a "totality of the circumstances" test for whether consent is valid. See, e.g., United States v Escobar, 389 F.3d 781 (8th Cir, 2004):
    Quote Quoting United States v Escobar
    The test applied to determine if consent is free and voluntary is whether, in light of the totality of the circumstances, consent was given without coercion, express or implied. Bustamonte, 412 U.S. at 227; Laing v. United States, 891 F.2d 683, 686 (8th Cir. 1989). The government bears the burden of showing consent was freely and voluntary given and not a result of duress or coercion, Laing, 891 F.2d at 686, and the burden cannot be discharged by showing mere acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968). "Rather, the government must show that a reasonable person would have believed that the subject of a search gave consent that was the product of an essentially free and unconstrained choice, and that the subject comprehended the choice that he or she was making." Cedano-Medina, 366 F.3d at 684 (internal citations and quotations omitted).

    Factors we consider when determining if consent was freely and voluntarily given, as set forth in United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990), include 1) age, 2) general intelligence and education, 3) whether the individual was under the influence of drugs or alcohol, 4) whether she was informed of the Miranda rights, and 5) whether she had experienced prior arrests and was thus aware of the protections the legal system affords suspected criminals.

    Additionally, the environment in which the alleged consent was secured is also relevant. Accordingly, we consider 1) the length of time one was detained, 2) whether the police threatened, physically intimidated, or punished the suspect, 3) whether the police made promises or misrepresentations, 4) whether the suspect was in custody or under arrest when the consent was given, 5) whether the consent occurred in a public or a secluded place, and 6) whether the suspect stood by silently as the search occurred. United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001). We also consider "whether the defendant's contemporaneous reaction to the search was consistent with consent." United States v. Jones, 254 F.3d 692, 696 (8th Cir. 2001). "The factors should not be applied mechanically, and no single factor is dispositive or controlling." United States v. Bradley, 234 F.3d 363, 366 (8th Cir. 2000) (internal citation omitted).
    Deception is thus a factor the court will consider in evaluating whether, under the totality of the circumstances, consent to a search is valid, but should not be presumed dispositive.

  3. #3
    Join Date
    Aug 2005
    Location
    Virginia
    Posts
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    Default

    Thank You.

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