The Fourth Amendment provides that law enforcement cannot conduct a search of property or person without a valid warrant. Any warrantless search is unlawful and should law enforcement arrest you pursuant to that search, the arrest itself becomes unlawful.

However, there are exceptions where a warrantless search is permitted under the law. One of those exceptions is consent to the search. As I have discussed elsewhere, you are not required under the law to consent to a search, and it is usually a good idea not to. Unfortunately, consent searches are quite frequent because people are often frightened and intimidated by the officer’s request. But even a consent search may be unlawful if consent is not voluntarily given.

If you consent to a search and you get arrested due to contraband found in the search, the arrest is presumed lawful because you consented to the search. But what if you consented because the police “strong-armed” you into allowing the search or threatened you or acquired your consent by deception? Whether the consent is voluntary or not is oftentimes difficult to determine, but it is the prosecutions burden to show in light of the circumstances that the consent was voluntarily given.

There are some circumstances where consent was clearly coerced. For example, if there is evidence that the police threaten to arrest a detainee based on nothing but his or her refusal to consent to a search or where a law enforcement officer informs an individual that he or she must consent to the search under the law. But what if a law enforcement officer gains consent by a promise of leniency if the consent is given?

A recent appellate case considered whether a consent was voluntary when an officer falsely told a driver who had been pulled over that he had the authority to tow the driver’s car but would not do so if he consented to a search of the vehicle. In fact, the officer did not have authority to tow the car, but the officer contended that he thought he did because the driver had a suspended license.  The driver ultimately consented to the search of the vehicle where officers found a loaded gun and arrested the driver.

The driver filed a motion to suppress the evidence (the gun) based on the argument that his consent to search the vehicle was unlawfully obtained because it was involuntary, that is, he consented because the officer threatened to tow the vehicle unless he consented to the search. The trial court denied the driver’s motion to suppress.

On appeal the prosecution argued that the officer was operating under an honest but mistaken belief that he could have the car towed. The appellate court concluded that even if true, such an honest mistake would not affect the court’s analysis. The “subjective good faith” of an officer in obtaining consent to search does not excuse what would otherwise be involuntary consent.

Turning to whether the consent was voluntary, the appellate court held that the consent to search the vehicle was invalid because the false promise of leniency not to tow the vehicle induced the driver to consent to the search. Even if subtle, such as coercion through deception or false promise, inducing a consent to search through such means is an unjustified intrusion against which the Fourth Amendment is meant to protect. The appellate court ordered the trial court to vacate its order denying the motion to suppress and enter an order granting the motion.

The case is Boitez v. Superior Court (2023) 96 Cal.App.5th 1213

This case is a reminder that there are many defense strategies that may result in a favorable outcome for the defendant. One of the most powerful defense tools is the motion to suppress. Orange County criminal defense attorney William Weinberg is available to discuss your criminal matter and review the facts for a possible motion to dismiss or other defense option. You may contact him for a free consultation by calling his Irvine office at 949-474-8008 or by emailing him at