WPI 342.06 Unreasonable Search—Exceptions to Warrant Requirement—Consent

Use this instruction for a claim of an unreasonable search under the Fourth Amendment when issues of consent are involved.

Use this instruction with WPI 342.04 (Unreasonable Search—Burden of Proof on the Issues) and WPI 340.01 (Claims Instruction for Section 1983 Cases).

The bracketed sentence is to be used when: (1) more than one person is in lawful possession of the area to be searched; and (2) one (or more) of the occupants who is physically present at the time of the search refuses to consent even though the police obtain consent from a different occupant. See Comment below.

The instruction will need to be modified for a case that involves a search of a person rather than a place.

A similar pattern instruction is used by the Ninth Circuit. See 9th Cir. Civ. Jury Instr. 9.15 (2007).

A person's consent to search must be voluntary to be valid under the Fourth Amendment. Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); State v. Shoemaker, 85 Wn.2d 207, 533 P.2d 123 (1975). If more than one lawful possessor of the area to be searched is present, and one occupant consents to the search but another refuses to consent, the police are not permitted to search the area occupied by the non-consenting person. Georgia v. Randolph, 547 U.S. 103. If the initially-objecting occupant is removed by police when police had reasonable grounds for removal, the occupant is no longer physically present and police may obtain consent from a co-occupant. See Fernandez v. California, 571 U.S. 292, 301–03, 134 S.Ct. 1126, 1134, 188 L.Ed.2d 25 (2014) (consent search valid where objecting occupant arrested and removed by police on suspicion of assaulting co-occupant; co-occupant later offered consent to search); State v. Walker, 136 Wn.2d 678, 682–85, 965 P.2d 1079 (1998).

To determine voluntariness, the court must examine the totality of the circumstances. See United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (airport search of drug courier); Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (search of car stopped for traffic violation). Mere acquiescence to lawful authority is insufficient to constitute consent. United States v. Spires, 3 F.3d 1234, 1237 (9th Cir. 1993).

Factors in determining consent include: (1) whether the consenting person was in custody; (2) whether officers' guns were drawn; (3) whether the person was told he or she had the right to refuse a request to search; (4) whether the person was told he or she was free to leave; (5) whether Miranda warnings were given; and (6) whether the person was told a search warrant could be obtained. Liberal v. Estrada, 632 F.3d 1064, 1082 (9th Cir. 2011); United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988).

The analysis of consent searches in Washington case law is based primarily on the Washington Constitution rather than the U.S. Constitution and, therefore, should not be relied upon in a Section 1983 case. See, e.g., State v. Khounvichai, 149 Wn.2d 557, 69 P.3d 862 (2003); State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).