What constitutes a voluntary search of a car that is pulled over for a traffic violation? The answer to this question determines whether the evidence found during the search can be used by the prosecution or whether it must be suppressed.

The U.S. Supreme Court has ruled that the Fourth Amendment protects citizens from warrantless searches unless the subject of the search has consented to the search. The prosecution must show, by a preponderance of evidence, that the defendant’s consent was voluntarily given. The case described below illustrates the factors that must be used to determine whether that burden is met.

Petitioner Juan Boitez was driving his mother’s car when he and his passenger were pulled over by Officer Gordon Brown of the Police Department for the City of Winters in Northern California. Boitez was detained because Brown believed he had failed to come to a complete stop at an intersection. Brown made the customary request for Boitez’s license, registration and proof of insurance. He had none of these – only a California identification card. The passenger lacked identification as well, and when asked about his status, replied that he “thought he was on formal probation.”

As Brown called his office for additional information about the two men in the car, additional police arrived. Brown was heard to tell the new officers that the Boitez’s car carried “bad guys” who “probably have dope on them.” One of the officers asked if the guys were “all tatted up” and Brown added, “They’re dirty dudes, man.” Brown later said, “I grew up with bad guys; these are fucking bad guys.”

Next, Brown began to carry out his plan to discover whether the passenger was actually on parole and also a gang member. He asked both Boitez and later his passenger to get out of the car. Brown then asked them what they were doing in town. Boitez said they were visiting his sister and “were not coming for no (sic) trouble.” Brown then offered, “If you’ll be cool with me, I’ll be cool with you.” Defendant responded, “eah.” Boitez then called his sister in the belief that she could prevent his mother’s car from being towed. She soon arrived at the scene and told the police that she had a valid driver’s license.

Brown’s negotiations with the defendant continued when he asked for proof of insurance, which Boitez said was probably somewhere in the car, since the vehicle belonged to his mother. He said, “I’m trying to cut you a little bit of a break, so do you mind if we search your car? You don’t have nothing in there? There’s no guns, drugs, anything like that? Nothing, nothing bad?” Brown continued to ask questions, explaining that he was not giving him a ticket for running a stop sign, nor was he going to tow the car, which would be expensive. When Boitez asked if his sister could drive the car, Brown replied, “You be cool with me brother; I’ll be cool with you.” He also said, “I’m trying to cut you a break, dude, okay? So if you’re good with that, I’ll cut you a break?”

Soon after, the car was searched and two loaded guns were found. One was under the passenger seat, and the other was on the passenger. Then, despite Brown’s offer, the car belonging to Boitez’s mother was towed away. Boitez was charged with possessing and unlawfully carrying a firearm while being a felon, carrying and driving with a loaded firearm, and doing all this while driving with a suspended license. Boitez filed a motion to suppress all the evidence obtained during the search.

Yolo County Superior Court Judge Tom M. Dyer denied Boitez’s motion while ruling that Brown’s “false promise of leniency not to tow the car” did not induce defendant’s consent, which the judge found was given voluntarily. Dyer said that Brown made an offer and the defendant, in response, provided consent to search the car.

When Boitez appealed, Acting Presiding Justice Ronald B. Robie of the Third District Court of Appeal, who wrote the court’s 3-0 unanimous opinion, concluded that the prosecution did not meet its burden of proving, by a preponderance of the evidence, that defendant’s consent was “uncoerced.”

Robie said that Brown’s false promise of leniency and to not tow the mother’s car were “material and inextricable part(s) of the agreement inducing defendant’s consent to search.” He said that the question before the court was “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.” He wrote, “The answer to that question is, “no.” He then issued a peremptory writ of mandate that directed the trial court to vacate its order that denied the motion to suppress the search and to enter a new order that granted Boitez’s motion.

The opinion also discussed Brown’s “honest but mistaken belief that he could tow the car.” Robie cited precedent from the First Circuit that ruled “voluntary consent cannot be based on the subjective good faith of an officer in making a representation that induced the consent to search.” He also said that “police officers are presumed to know the law.”

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