by

Jill Paperno
Second Assistant Monroe County Public Defender

In every search case where police claim the defendant consented to the search, there are two issues that must be addressed.  We often recognize the former - whether the consent was genuine consent rather than acquiescence to authority.  But the second issue that must be considered is whether the police had the lawful authority to request consent.  So even if a defendant genuinely consented to a search, if the police did not have the right to ask to search, there should still be suppression.

1.  The burden to establish consent

In People v. Berrios the Court of Appeals stated, "(T)hough a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to 'the burden of going forward to show the legality of the police conduct in the first instance (cites omitted).  These considerations require that the People show that the search was made pursuant to a valid warrant, consent, incident to a lawful arrest, or, in cases such as those here, that no search at all occurred because the evidence was dropped by the defendant in the presence of the police officer."  People v. Berrios, 28 NY2d 361, 367-68 (1971).  (Incidentally, Berrios has some nifty language about the prosecution being deemed to have failed to meet its burden of the officers aren't credible.  I use that a lot.  Though rarely do judges conclude that the officers were insufficiently credible for the prosecution to meet its burden.) 

And, the Fourth Department, citing People v. Kuhn (33 N.Y.2d 203), and finding that consent to search a pedestrian carrying a box and standing on a back porch had not been established, recognized the heavy burden to establish consent: “The court's conclusion that defendant consented to the police intrusion is not supported by the record, or by the reality of the encounter. The prosecution had a heavy burden to establish defendant's consent (People v. Kuhn, 33 N.Y.2d 203).” People v. McFadden, 179 A.D.2d 1003, 1004, 579 N.Y.S.2d 273, 274 (1992)

2.  The legal standard in determining whether consent was truly given

“Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle (see People v. Kuhn, 33 N.Y.2d 203, 208; Schneckloth v. Bustamonte, 412 U.S. 218, 225—228, 93 S.Ct. 2041, 36 L.Ed.2d 854, Supra). As the Supreme Court stated in Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, Supra), ‘Where there is coercion there cannot be consent.’” People v. Gonzalez, 39 N.Y.2d 122, 128, 347 N.E.2d 575, 580 (1976).

The Bronx county Supreme Court decision in People v. Mota summed up the factors to be considered in determining whether consent was truly consent, or instead, acquiescence to authority.

"The People have the 'heavy burden' of proving the voluntariness of purported consents and the trial court must determine voluntariness based on the totality of the circumstances.  People v. Kuhn, 33 NY2d 203, 208 (1973); People v. Gonzalez, 39 NY2d 122, 128 (1976).  In Gonzalez, the Court of Appeals noted that no one factor is determinative of the voluntariness of consent, but that several specific factors should be considered.  The first factor to be considered is whether the defendant is in custody at the time of the alleged consent.  In this context, a court must consider the immediate circumstances surrounding an arrest, whether the arrest is resisted, whether the defendant is confronted by a large number off police agents and whether he is handcuffed.  A second factor is the background of the person consenting.  A person with greater familiarity with police is considered more likely to give a voluntary consent if he consents at all.  The third consideration is whether a defendant either prior or subsequent to the consent has been evasive or uncooperative with the police officers.  The final factor for consideration is whether a defendant has been advised of his right to refuse to consent, although such advice is not mandatory.  People v. Gonzalez  at 128-9, People v. Artis 201 AD2d 488 (2d Dept. 1994).  An additional relevant factor is whether a defendant has attempted to revoke his consent.  People v. DePace, 127 AD2d 847 (2d Dept.), lv. denied, 69 NY2d 879 (1987)."

Further, the test for determining if a search and seizure was based on a valid consent by a person who has been unlawfully arrested was set forth in People v. Borges, 69 N.Y.2d 1031 (1987), in which the Court held that it is not enough that the consent be voluntary, but rather, the evidence must additionally be acquired by means distinguishable from the illegal arrest.  Thus, the Court held it is relevant whether "the consent was volunteered or requested, whether the defendant was aware he could decline to consent."  People v. Borges, supra at 1033.

So as you prepare your cross-examination for the hearing, consider establishing the number and proximity of officers and displays of authority - were they in uniform?  Had guns been drawn?  Had there been a chase?  Did they ever tell your client s/he could refuse the request to search?  The questions are only as limited as your imagination.

3.  Did the police have the right to ask

But can a police officer walk up to anyone (or stop any vehicle) and seek consent to search at any time?  No.  And I'm not the only one saying that.

Even the request to search an individual is governed by the DeBour/Hollman line of cases.  First, a brief refresher - As you recall, a Level I intrusion is a request for information, permissible when there is "some objective credible reason for that interference not necessarily indicative of criminality (cite omitted).  The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure (cites omitted).  Where a police officer entertains a reasonable suspicion that a particular person has committed, or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person (cites omitted).  A corollary of the statutory right to temporarily detain for questioning is the authority to frisk or if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed (CPL 140.50 subd.3).  Finally, a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence (CPL 140.10)."  People v. DeBour, 40 NY2d 210, 223 (1976). 

In People v. Hollman the Court of Appeals stated, "No matter how calm the tone of narcotics officers may be, or how polite their phrasing, a request to search a bag is intrusive and intimidating and would cause reasonable people to believe that they were suspected of criminal conduct.  These factors take the encounter past a simple request for information."  People v. Hollman, 79 NY2d 181 (1992).  Once questioning has exceeded a request for information and must be supported, as with any Level 2 inquiry or higher, by at least a founded suspicion that criminal activity is afoot.

In People v. Dunbar, the Court of Appeals stated, "The suppression court, affirmed by the Appellate Division, held that the police did not have a founded suspicion that criminal activity was afoot, as needed in order to engage in the more extended, accusatory questioning attendant to a common-law inquiry. As we held in People v. Hollman, 79 NY2d 181, 191-192 (1992), a consent to search will not be upheld unless the request to search is supported by a founded suspicion of criminality (cites omitted).  Here, as the courts determined, defendant granted the police permission to search his person and his car only after questioning that might reasonably have led him to believe that he was suspected (without a founded suspicion) of criminality.  People v. Dunbar, 5 NY3d 834 (2005). 

In a recent Court of Appeals decision, People v. Garcia, __ NY3d __, 2012 WL 6571117, the Court of Appeals reaffirmed the principle that officers may not routinely ask pointed questions without founded suspicion, even in the circumstance of an automobile stop.  "Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot." 

So if the police request the opportunity to search a defendant or his/her property, your cross-exam should include questions that establish that there was no founded suspicion.  (That is, unless the prosecution has failed to establish founded suspicion, and your questions may help to clarify that there was. Sometimes silence is golden, and under those circumstances, you may choose not to question.)

4.  How far can the police go in seeking consent to search in a pedestrian stop?

Even if consent is given, the search must not exceed the scope of the consent.  "The scope of the search, it is held, must be limited strictly to the terms of the consent (see Walter v. United States, 447 U.S. 649, 656–657, 100 S.Ct. 2395, 2401–2402, 65 L.Ed.2d 410; United States v. Taibe, 446 F.Supp. 1142, 1147, affd. 591 F.2d 1333 [2 Cir.], cert. den. 444 U.S. 1071, 100 S.Ct. 1013, 62 L.Ed.2d 752; 2 LaFave, Search and Seizure, § 8.1, subd. c)..."
People v. Jakubowski, 100 A.D.2d 112, 116, (4th Dept. 1984).

5.  If an officer initiates an encounter, can a claim of officer safety without evidence of officer danger support a search that exceeds what DeBour/Hollman would permit?
(T)here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 174—176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878).23 And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States, supra.

Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968)

        In People v. Del Vecchio, 277 AD2d 927, The Fourth Department applied the “Terry” standard in suppressing evidence obtained as a result of an unlawful frisk:

The court erred, however, in denying that part of defendant's motion seeking suppression of the evidence seized during the frisk search. Defendant was not suspected of a “serious and violent crime [such] as robbery or burglary” (People v. Mack, 26 N.Y.2d 311, 317, 310 N.Y.S.2d 292, 258 N.E.2d 703, cert. denied 400 U.S. 960, 91 S.Ct. 357, 27 L.Ed.2d 270) or “a crime involving potentially dangerous instruments” (People v. Burks, 235 A.D.2d 373, 374, 652 N.Y.S.2d 980, lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 863, 681 N.E.2d 1310), and the Deputy failed to articulate a reason justifying the frisk search (see, People v. Barriera, 191 A.D.2d 153, 155, 594 N.Y.S.2d 177, appeal dismissed 81 N.Y.2d 1040, 600 N.Y.S.2d 440, 616 N.E.2d 1102).

People v. Del Vecchio, 277 A.D.2d 927, 928, 716 N.Y.S.2d 256, 257 (2000).

        In suppressing evidence of a packet of drugs found in a waistband, Justice Conviser of New York County noted that “A protective search must be limited to an intrusion reasonably designed to recover weapons. If the limited intrusion fails to reveal a weapon, thereby abating the officer's concern for his safety, the search must stop. People v. Diaz, 81 N.Y.2d 106 (1993); People v. Roth, 66 N.Y.2d 688 (1985); Matter of Doris A., 163 A.D.2d 63 (1st Dep't 1990), app. den., 76 N.Y.2d 712.”  People v. Harrill, 19 Misc. 3d 1141(A), 866 N.Y.S.2d 94 (Sup. Ct. 2008).