Promise  of leniency by police officer not to tow car invalidates consent to search

Boitez v. Superior Court of Yolo County (Cal. Ct. App., Nov. 7, 2023, No. C098102) 2023 WL 7313899, at *1

Summary: Boitez filed a motion to suppress the evidence obtained during a search of his mother’s car. After the trial court denied his motion, petitioner filed a petition for writ of mandate or prohibition.

The issue is whether defendant gave voluntary consent for the police to search his mother’s car after he was pulled over for a traffic violation. Here, the police officer falsely, but apparently with subjective belief that it was true, stated that he had the authority to tow defendant’s mother’s car, but would not do so if defendant consented to the search. Did  the police officer’s false promise of leniency as to the towing of defendant’s mother’s car, the prosecution met its burden by a preponderance of the evidence that defendant’s consent was uncoerced? (Vazquez, supra, 724 F.3d at p. 18.)

The Court of Appeal held that the false promise of leniency not to tow the car was a material part of the agreement inducing defendant’s consent to the search. Under the totality of the circumstances, Boitez’s consent was not voluntary. Voluntary consent cannot be based on the subjective good faith of a police officer in making the false statement that induced the defendant’s consent to search. (Vazquez, supra, 724 F.3d at pp. 23-24; cf. U.S. v. Richard (5th Cir. 1993) 994 F.2d 244, 251, 252 [consent valid when police officers honestly but inaccurately informed the subject of the search that her boyfriend had already consented to a search of their motel room].) The Court of Appeall issued a peremptory writ of mandate directing the trial court to vacate its order denying the motion to suppress and to enter a new order granting the motion.

Suppression motion: Boitez was charged with being a felon in possession of a firearm, being a felon in possession of ammunition, unlawfully carrying a loaded firearm, carrying a loaded firearm in a vehicle, and driving with a suspended license. Boitez filed a motion to suppress the evidence obtained during the search of his car.

At the motion to suppress hearing, Officer Brown confirmed he did not believe that defendant was on searchable probation and testified the City of Winters Police Department directed its officers “to tow vehicles with drivers on a suspended license” unless the officer used his, her, or their discretion not to do so. If, however, the officer decided not to tow the vehicle, the officer “would have to answer why.” Officer Brown testified that Boitez’s mother’s car was ultimately towed because defendant had a suspended license. The trial court explained it understood the issue to be one of “purely consent.” The trial court agreed with defendant that, had the car been towed and had the evidence been discovered during an inventory search, the search “likely” would not have been “justified purely under the community caretaking function.” The trial court added, however, the question whether an inventory search would have been legal “is kind of a side point” and “putting the cart before the horse.” The trial court found Officer Brown made an offer and defendant in response provided consent to search the car. The trial cour denied the motion to suppress.

Boitez filed a petition challenging the trial court’s ruling.

Review of motion to suppress

A Court of Appeal defers to the trial court’s factual findings, express or implied, where supported by substantial evidence. “In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Boitez argued that his consent to search the car was involuntary because his consent was acquired through the threat by Officer Brown’s false statement that he had authority to tow the car. He further argues the totality of the circumstances indicates his consent was not freely and voluntarily given. The People acknowledge, the vehicle “was parked in a quiet … residential neighborhood,” it “did not block traffic or create a driving hazard,” no one “expressed a concern of vandalism or theft,” “a licensed driver was on [the] scene and available to take control of the vehicle at [defendant’s] request,” and “Officer Brown himself felt no need to tow the vehicle.” There was no community caretaking function that necessitated or authorized the towing of defendant’s mother’s car.

No voluntary consent to search

The question of voluntary consent cannot be based on the subjective good faith of an officer in making a representation that induced the consent to search. (Vazquez, supra, 724 F.3d at pp. 23-24; cf. U.S. v. Richard, supra, 994 F.2d at pp. 251, 252 [consent valid when police officers honestly but inaccurately informed the suspect of the search that her boyfriend had already agreed to allow them to search their motel room].) “If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” (Beck v. Ohio (1964) 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142.)

False promise of leniency was material to consent

The Court of Appeal found that  Officer Brown’s false promise of leniency with regard to the towing of the car was a material and inextricable part of the agreement to consent to the search and concluded that the totality of the circumstances shows defendant’s consent was not voluntarily given. The question is whether the prosecution met its burden of showing by a preponderance of the evidence that defendant’s consent was voluntary but for the false promise of leniency that Officer Brown would not tow the car. (People v. James, supra, 19 Cal.3d at p. 106 & fn. 4.)

 “[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.” (Schneckloth v. Bustamonte, supra, 412 U.S. at p. 228, 93 S.Ct. 2041.) Boitez was predominantly concerned with not having his mother’s car towed and impounded. When Boitez and Officer Brown were discussing the terms of the agreement to search the car, he asked whether his sister could take the car. Officer Brown stressed that if he towed the car, defendant (or his mother) would not get the car back for two or perhaps three days, indicating it would cost a lot of money if he towed the car. (See People v. Valenzuela (1994) 28 Cal.App.4th 817, 832 [“if any suggestion is made to the suspect that ‘it would be unwise or fruitless to resist [a search],’ the search cannot stand”].) The false promise of leniency that Officer Brown made not to tow the car was thus material and important to defendant.

Because defendant’s consent to the search was invalid, the evidence secured by the prosecution as the fruit of that consent is inadmissible. The trial court should have granted the motion to suppress.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.