State v. Price
| Decision Date | 10 April 1974 |
| Docket Number | No. 5361,5361 |
| Citation | 521 P.2d 376,55 Haw. 442 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Drake A. PRICE, aka Andre D. Price, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. In order to be valid, a consent to a warrantless search must be voluntary.
2. In the consent search situation, voluntary means uncoerced.
3. In a custodial consent situation where there may be a presumption of coercion, proof of a 'knowing' consent is important but still not a prerequisite of voluntariness.
4. In the custodial consent situation, the Fourth and Fifth Amendment protections overlap and the Fifth Amendment warning against self-incrimination is sufficiently encompassing to protect Fourth Amendment guarantees.
David Bettencourt, Mattoch, Kemper & Brown, Honolulu, for defendant-appellant.
Joseph A. Dubiel, Deputy Pros. Atty., Barry Chung, Pros. Atty., Honolulu, for plaintiff-appellee.
Before RICHARDSON, C. J., LEVINSON and KOBAYASHI, JJ., HAWKINS, Circuit Judge, for OGATA, J., disqualified, and VOTOUSEK, Circuit Judge, assigned by reason of vacancy.
About 9:30 p.m., October 18, 1971, a number of police officers responded to a reported burglary at the Moorings apartments in Hawaii Kai. The defendant was observed walking away from the lanai area of the apartment in question. Defendant was then apprehended as he was about to drive off in his car. Defendant was arrested and the driver's area of the car was searched. In that search a large knife, a crowbar and a long screwdriver were discovered. Defendant was given his Miranda warning and was asked for his consent to search his car. He replied affirmatively. The trunk of defendant's car was then searched and property recognized by one of the officers as having been reported burglarized earlier the same evening from a nearby residence was seized. Defendant was rearrested for detaining stolen goods.
It was argued below and the trial court found that this second search was the result of a valid consent by defendant.
It is well settled that in order to be valid, a consent to a warrantless search must be 'voluntary. 1' It is in the definition of 'voluntary' that the difference of opinion arises. The Court of Appeals for the Ninth Circuit has held that to be 'voluntary' a consent must be 'knowing. 2' The Ninth Circuit was recently overruled when the Supreme Court held that in a noncustodial consent search '(v)oluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. 3' The Ninth Circuit has refused however to abandon the 'knowing' requirement in custodial consent searches. 4
We do not accept the position of the Ninth Circuit making subjective knowledge of the right to refuse consent a touchstone of voluntariness. We equate voluntary with uncoerced. '(T)he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. 5' Knowledge of the right to refuse consent is only one indicium of the absence of coercion. In a custodial situation where there may be a presumption of coercion, proof of a 'knowing' consent is important but still not a prerequisite of voluntariness. '(T)he mere fact that a suspect is under arrest does not negate the possibility of a voluntary consent. 6' This is especially so in a situation such as the case at hand where the coercive atmosphere was at least partially dispelled when the defendant was given his Miranda warnings shortly before being asked for consent to a search. In the custodial consent situation the Fourth and Fifth Amendment protections overlap and the Fifth Amendment warning against self-incrimination is sufficiently encompassing to protect Fourth Amendment guarantees. The Miranda warning and its proximity in time to the alleged consent are important considerations in the determination of voluntariness.
We agree with the First Circuit that 7' In the case at hand, one of the police officers testified on cross-examination that:
We asked if we can search the car. He said, 'Yes.' We asked him several times if he understood. He said, 'Yes, go right ahead.' He took the bunch of keys, he opened the trunk. (emphasis added.)
There was further testimony that the defendant had been advised of...
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81 Hawai'i 358, State v. Ganal
...433 P.2d 593, 596 (1967). It is well settled that consent to a warrantless search must be "voluntary" to be valid. State v. Price, 55 Haw. 442, 443, 521 P.2d 376, 377 (1974). "Whether consent to a search was freely and voluntarily given, as in a case where custodial interrogation may be imp......
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State v. Kaleohano
...vehicle, we also hold that her lawful detention does not, as a per se matter, validate or invalidate her consent. State v. Price, 55 Haw. 442, 444, 521 P.2d 376, 377 (1974) (stating that "`the mere fact that a suspect is under arrest does not negate the possibility of a voluntary consent'")......
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Balogh v. Balogh
...contracts, did not understand and apply the law that it cited.11 Voluntariness is a question of fact. See State v. Price, 55 Haw. 442, 443, 521 P.2d 376, 377 (1974) (in the context of a search, holding that voluntariness is a question of fact). The family court was in the best position to m......
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State v. Won
...added). Thus, consent may not be gained by explicit or implicit coercion, implied threat, or covert force. State v. Price, 55 Haw. 442, 443, 521 P.2d 376, 377 (1974).25 While coercion may be indicated where a person's “will has been overborne,” Shon, 47 Haw. at 166, 385 P.2d at 836, ultimat......