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Protect Yourself Against Unreasonable Searches and Seizures

By Walin & Klarich

Prosecution Has the Burden to Prove the Consent Given to Search Was Free, Voluntary and Unequivocal ? What a Criminal Defense Attorney Can Do for You The People have the burden of proof upon them to demonstrate affirmatively by a preponderance of the evidence that the consent to a search was free, voluntary and unequivocal. People v. James (1977) 19 Cal.3d 99, 137 Cal.Rptr. 447. Consent can be given to a search, but the consent must be unequivocal, specific, and freely and intelligently given. Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 57 Cal.Rptr. 623. Consent must be voluntary and not in response to any express or implied assertion of authority. Thus, if a defendant was detained without an objective, articulable basis for the detention, the detention was a violation of the defendant's Fourth Amendment rights and his consent to a search would not be voluntary...continue to full post

Full post as published by Southern California Criminal Defense Blog on June 27, 2009 (boomark / email).