Metropolitan News-Enterprise


Wednesday, November 8, 2023


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Consent to Search Invalid Where Enticed By False Promise—Court of Appeal

Officer’s Good-Faith Belief That He Had Authority to Tow Vehicle, and Agreeing Not to in Exchange for Permission to Search, Is Irrelevant, Third District Says


By a MetNews Staff Writer


The Third District Court of Appeal yesterday granted a writ of mandate directing the trial court to suppress the fruits of a search of an automobile, holding that consent of the driver was unlawfully acquired by an officer having agreed that in exchange for permission, he would not have the car towed—an action which he believed he had the authority to take, but didn’t.

“We adopt the reasoning of the First Circuit Court of Appeals that 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,” Acting Presiding Justice Ronald B. Robie wrote.

Possession of a Firearm

Defendant Juan Boitez was charged with being a felon in possession of a firearm and related offenses based on a loaded gun being found under the passenger’s seat in the course of the search (as well as being charged with driving with a suspended license).

Yolo Superior Court Judge Tom M. Dyer erred in denying Boitez’s suppression motion, Robie said. “We hold that the false promise of leniency not to tow the car was a material and inextricable part of the agreement inducing defendant’s consent to the search, and thus, under the totality of the circumstances, defendant’s consent was not voluntarily given,” he wrote.

City of Winters Police Officer Gordon Brown had pulled Boitez over for not coming to a complete stop at an intersection. He was driving his mother’s vehicle.

Boitez did not have a valid driver’s license but appeared that his passenger did, and Boitez suggested phoning his sister to ask that she come and drive the car home. The defendant told Brown he thought insurance information was somewhere in the vehicle but he was unable to locate it.

Officer’s Statements

Brown told the driver:

“So, I could tow your car right now, but I won’t do that, okay? I didn’t see any insurance paperwork.”

He asked:

“I’m trying to cut you a little bit of a break, so do you mind if we search your car?”

The officer went on to say:

“Look, I’m not giving you a ticket for running the stop sign, I’m not giving you a ticket for the insurance stuff, and I’m not towing your car. That seems like a pretty good deal.”

He added:

 “If I tow your car, brother, you ain’t getting it back till Monday. That’s...the tow plus two days of storage, maybe three....”

Not having insurance papers, Brown added, is “like a thousand dollar ticket, dude.”

Boitez assented.

Brown did not actually have the authority to tow the vehicle, Robie said, as the Office of Attorney General acknowledged.

Authority to impound a vehicle cannot be justified under the community caretaking function based merely on a suspicion that evidence of criminal activity night be acquired from a search, he said, and pointed out that the vehicle was not blocking traffic, and a licensed driver could have driven it.

The officer’s good faith belief that he did have the authority he claimed was not doubted. Robie embraced the view expressed by the First U.S. Circuit Court of Appeals in its 2013 decision in U.S. v. Vazquez.

It was held in that case:

“While there is no controlling precedent on point, the applicable principles and analogous case law nevertheless convince us that the agents’ subjective good faith is not enough. The Fourth Amendment by its express terms demands that searches be ‘reasonable,’ not merely based on good intentions.” Robie wrote:  We independently find 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 conclude the totality of the circumstances shows defendant’s consent was thus not voluntarily given. 

“We note, the question is not whether the totality of the circumstances allows a finding of voluntary consent, as the People assert; the question is instead 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.…The answer to that question is, ‘no.’ ”

The case is Boitez v. Superior Court (People), 2023 S.O.S. 4024.


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