Additional research by Darren Chaker, http://darrenchaker.us ,shows another exception to the Fourth Amendment’s prohibition against warrantless searches and seizures is when an individual consents to the search of his property. “Consent
operates as a waiver of Fourth Amendment rights if, by a preponderance of the evidence, it is found to have been given voluntarily under the totality of the circumstances.” United States v.Webster, 162 F.3d 308, 333 (5th Cir. 1998).
When determining whether consent was voluntarily given, this Court considers the totality of the circumstances, in light of the following six factors: 1) the suspect’s custodial status; 2) the presence of coercive police procedures; 3) the extent and level of the suspect’s cooperation with law enforcement; 4) the suspect’s awareness of his right to refuse consent; 5) the appellant’s
education and intelligence; and 6) the suspect’s belief that no incriminating evidence will be found. United States v. Mata, 517 F.3d at 290. “When consent is the justification for the search, the government bears the burden of demonstrating that it was freely and voluntarily given and was not simply an acquiescence to a claim of lawful authority.” United States v. Gomez-Diaz, 712 F.2d 949, 951 (5th Cir. 1983).
Often consent to search is given by a roommate. The 9th Circuit Court of Appeal holds that a search conducted after a cotenant’s objection violates the 4th and 14th Amendments to the Federal Constitution. In United States v. Murphy, 516 F.3d 1117, 1124 (9th Circuit 2008), the 9th Circuit states, “[W]hen a co-tenant objects to a search and another party with common authority subsequently gives consent to that search in the absence of the first co-tenant the search is invalid as to the objecting co-tenant.”
Likewise, belated consent to search does not make evidence seized in the initial consent voluntary if the initial seizure of the person was unlawful. In United States v. Melendez-Gonzalez, 727 F.2d 407, 413-14 (5th Cir. 1984). In that case, Border Patrol Agents had conducted an illegal search of the defendant’s automobile trunk, but later, following the search, the defendant signed a consent form giving the Agents permission to conduct a search of the car. Id. at 413. The Court correctly noted in suppressing the evidence seized from the trunk that “[t]here is no authority…which justifies an earlier illegal search based upon a later consent to an additional search.” Id. at 414.
Last, the United States Supreme Court dealt with the now familiar ‘fruit of the poisonous tree’ doctrine in Wong Sun
v. United States, 371 U.S. 471 (1963). Wong Sun dealt with a confession arising out of an illegal arrest, but it would be equally applicable to a confession arising out of an illegal search.
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