Darren Chaker notes while counter forensics technology is prevalent, most people do not secure electronic information thus leaving it open to search or seizure, but still requiring probable cause. When police are involved, a warrant must first be issued by a “neutral and detached magistrate,” based on probable cause, to search or seize. Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971). A search or seizure without a warrant is presumptively invalid. Katz v. United States, 389 U.S. 347, 357 (1967); Coolidge v. New Hampshire, 403 U.S. 443 (1971).
It is a “cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” Acevedo v. California, 500 U.S. 565, 580 (1991) (quoting, Mincey v. Arizona, 437 U.S. 385, 390 (1978)). The Government bears the burden of justifying a warrantless search. United States v. Johnson, 936 F.2d 1082, 1084 (9th Cir. 1991)(per curiam). One such recognized exception is consent, which must be voluntary. Davis v. United States, 328 U.S. 582, 593-94 (1946); Schneckloth v. Bustamonte, 412 U.S. 218, 235 (1973).
Darren also notes when it is alleged consent to search was given, the government “always bears the burden of proof to establish the existence of effective consent….” “That burden is heaviest when consent would be inferred to enter and search a home.” … “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.” United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir.1990).
“The government must prove that consent was given. It must show that there was no duress or coercion, express or implied. The consent must be ‘unequivocal and specific’ and ‘freely and intelligently given.’ There must be convincing evidence that defendant has waived his rights. There must be clear and positive testimony. ‘Courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights.’ Coercion is implicit in situations where consent is obtained under color of the badge, and the government must show that there was no coercion in fact.” Id. (citing United States v. Page, 302 F.2d 81, 83-84 (9th Cir.1962) (footnotes omitted)).
The Court determines the “voluntariness” of consent based on the totality of circumstances under which it was given. Schneckloth, 412 U.S. at 226. The Fourth Amendment requires that “consent not be coerced, by explicit or implicit means, by implied threat or covert force.” Id. at 228. When considering the totality of the circumstances, some factors taken into account include: the defendant’s level of education, intelligence, amount of consultation regarding constitutional rights, and repetition and length of questioning. Id. at 226. Consent is not necessarily invalid if the accused lacked knowledge of the right to refuse consent, though this is a factor weighed in the totality of the circumstances. Id. at 248-49. Both “subtly coercive police questions” and the defendant’s possibly vulnerable subjective state of mind must also be considered. Id. at 229.
The five factors considered most integral by this Court are: “1) whether the [consenting individual] was in custody; 2) whether the arresting officers had their guns drawn; 3) whether Miranda warnings were given; 4) whether the [consenting individual] was notified that she had a right not to consent; and 5) whether the [consenting individual] had been told a search warrant could be obtained.” United States v. Brown, 563 F.3d 410, 415 (9th Cir. 2009). No single factor alone is determinative, but rather all relevant factors are weighed and considered for the Court to determine whether consent was voluntary. Schneckloth, 412 U.S. at 227.