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State v. Olaya3/5/1987
t. App.1987). In that case, this court affirmed the trial court's denial of defendant's motion to suppress, after identifying eight guidelines that should be considered in determining the reasonableness of a roadblock. This court stated: " ecause we discern no real difference between roadblocks to check for licenses and vehicle registration and roadblocks to check for sobriety, what we decide today simply adds to State v. Ruud the standard for determining the validity of roadblocks and guidelines useful in testing that standard." Id. at page 658, 735 P.2d at page 1164.
We have reviewed the facts of the roadblock at issue in this appeal in light of the new guidelines. With the exception of advance publicity, the roadblock in this case satisfied the intent of each guideline. Because no one guideline is dispositive, and because there was substantial evidence to support the trial court's conclusion that the officers in this case did not have or exercise unbridled discretion, we conclude the the roadblock was valid.
WHETHER DEFENDANT'S CONSENT WAS VOLUNTARY.
a. Standard of Review.
Whether consent is voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte,
412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Cohen, 103 N.M. 558, 711 P.2d 3 (1985), cert. denied, 476 U.S. 1158, 106 S. Ct. 2276, 90 L. Ed. 2d 719 (1986). It is for the trial court to weigh the evidence, determine its credibility, including the credibility of the witnesses, and decide whether the evidence is sufficient to clearly and convincingly establish that consent was given voluntarily. State v. Bidegain. Although we must view the evidence and inferences in the light most favorable to the prosecution, the presumption of the trial court's correctness does not replace the requirements of proof. State v. Malouff, 81 N.M. 619, 471 P.2d 189 (Ct. App.1970).
The government had a heavy burden when it seeks to justify warrantless arrests and searches. United States v. Coker, 599 F.2d 950 (10th Cir.1979). In the absence of a warrant, but when defendant has given permission to search, the burden is on the state to show by clear and positive evidence that consent was given without duress, coercion, or other factors which would vitiate the voluntary nature of the consent. See State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967), cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968); State v. Mann, 103 N.M. 660, 712 P.2d 6 (Ct. App.1985).
Waiver of a basic constitutional right will not be presumed. State v. Herring, 77 N.M. 232, 421 P.2d 767 (1966), cert. denied, 388 U.S. 923, 87 S. Ct. 2126, 18 L. Ed. 2d 1372 (1967). Although proof of knowledge of the right to refuse is not required in order to have effective consent, such knowledge is highly relevant to a determination that there has been consent. United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Since voluntary consent is a substitute for probable cause, see State v. Herring, it must be clear that actual consent was voluntarily given to overcome the presumption against waiver of a constitutional right.
When the defendant to be searched is illiterate or a foreigner who does not readily speak and understand English, the government's burden to show voluntary consent is heavier. Kovach v. United States, 53
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