9.15 PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEARCH—EXCEPTION TO WARRANT REQUIREMENT—CONSENT

In general, a search of a [person] [residence] [vehicle] [property] is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant. [A "search warrant" is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.] Under an exception to this rule, a search warrant is not required and a search is reasonable if [the person] [a person in lawful possession of the area to be searched] knowingly and voluntarily consents to the search [and there is not any express refusal to consent by another person who is physically present and also in lawful possession of the area to be searched].

In determining whether a consent to search is voluntary, consider all of the circumstances, including:

(1)	whether the consenting person was in custody;

(2)	whether the officers' guns were drawn;

(3)	whether Miranda warnings were given;

(4)	whether the consenting person was told [he] [she] had the right to refuse a request to search;

(5)	whether the consenting person was told a search warrant could be obtained;

(6)	[any other circumstances applicable to the particular case].

In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply.

Comment

Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment —Unreasonable Search—Generally).

It is a well-settled exception to the warrant requirement that an "individual may waive his Fourth Amendment rights by giving voluntary and intelligent consent to a warrantless search of his person, property, or premises." United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000); see also Ohio v. Robinette, 519 U.S. 33, 39-40 (1996). Whether a consent to search was voluntarily given is a question of fact "to be determined from the totality of all the circumstances." United States v. Brown, 563 F.3d 410, 415 (9th Cir. 2009) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)). The Ninth Circuit considers five factors in determining voluntariness, which have been incorporated into the above instruction. See, e.g., Liberal v. Estrada, 632 F.3d 1064, 1082 (9th Cir. 2011) (applying five-factor test for voluntariness in § 1983 case). "No one factor is determinative in the equation" and "[b]ecause each factual situation surrounding consent to a search is unique," a court may also take into account other relevant factors. Id.

In Georgia v. Randolph, 547 U.S. 103, 106 (2006), the Supreme Court reiterated this rule: "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 Court, however, also held that, as between a wife's consent to a search of the family residence and her husband's refusal to consent, "a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him." Id. See also Bonivert v. City of Clarkston, 883 F.3d 865, 875 (9th Cir. 2018) ("Applying Randolph, we hold that the consent exception to the warrant requirement did not justify the officers' entry into Bonivert's home. Even though the officers secured [co-occupant] Ausman's consent, Bonivert was physically present inside and expressly refused to permit the officers to enter on two different occasions"). The Ninth Circuit has also determined that after police have obtained consent from one party, they do not have an affirmative duty to seek out a co-tenant in order to inquire if there is an objection. See Brown, 563 F.3d at 416-17 (finding voluntary consent from co-occupant of residence when defendant had been arrested pursuant to valid arrest warrant and placed in squad car prior to consent discussion with co-occupant).

Randolph's exception to the consent rule for third parties does not apply when the "consent" consists of a probationer's search condition. That scenario requires an examination of whether a warrantless search "was reasonable under the Court's general Fourth Amendment approach of 'examining the totality of the circumstances,' with the probation search condition being a salient circumstance." Smith v. City of Santa Clara, 876 F.3d 987, 992 (9th Cir. 2017) (citing United States v. Knights, 534 U.S. 112, 118 (2001) (rejecting jury instruction framed in terms of consent based on warrantless probation search condition)).

Whether an individual was told he or she was "free to leave" may implicate both the

first factor—whether the individual was in custody—and the fourth factor—whether he or

she was informed he or she could refuse consent. See, e.g., United States v. Russell, 664 F.3d

1279, 1281 (9th Cir. 2012) (noting that officer's instruction that individual is free to leave is "an instructive, but certainly less clear, way of saying that consent could be refused"); United States v. Bassignani, 575 F.3d 879, 886 (9th Cir. 2009) (noting that officer's instruction that individual is free to leave is important consideration in determining whether individual is in custody); but see United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000) (noting that, when searching bus passengers, "free to leave" warning is inadequate to ensure voluntariness).

The Supreme Court has clarified that an occupant who initially objects, but is later removed by police, is not physically present for the purposes of Georgia v. Randolph when reasonable grounds existed for such removal or when probable cause existed for the arrest of the objecting occupant. Fernandez v. California, 134 S. Ct. 1126, 1134 (2014) (upholding warrantless search of apartment when consent later obtained from co-occupant after objecting occupant arrested on suspicion of assaulting co-occupant).

Under certain circumstances, a third party may have actual or apparent authority to give consent to the search of another's property. United States v. Davis, 332 F.3d 1163, 1169 (9th Cir. 2003); see United States v. Ruiz, 428 F.3d 877, 880-81 (9th Cir. 2005) (citing United States v. Dearing, 9 F.3d 1428, 1429-30 (9th Cir. 1993) (stating three-part test to determine apparent authority of third person). When authority to consent is factually disputed, it may be necessary to instruct the jury on these standards.

Relatedly, the "knock and talk" exception, which allows officers to approach a home and

knock on the door, does not apply when the officers' purpose in conducting the "knock and talk"

is to arrest the occupant. United States v. Lundin, 817 F.3d 1151, 1160 (9th Cir. 2016).

In the context of an airport security screening, consent to search can be implied from the circumstances. United States v. Aukai, 440 F.3d 1168, 1179 & n.10 (9th Cir. 2006).

A plaintiff alleging a § 1983 claim based on an unreasonable search in violation

of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply. Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994); see also Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship); Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action "carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]"); cf. Hopkins v. Bonvicino, 573 F.3d 752, 764 (9th Cir. 2009) (placing burden on defendant to show existence of exigent circumstance at summary judgment stage).

Revised June 2018