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State v. Olaya3/5/1987
F.2d 639 (6th Cir.1931); United States v. Wai Lau, 215 F. Supp. 684 (S.D.N.Y.1963), cert. denied, 379 U.S. 856, 85 S. Ct. 108, 13 L. Ed. 2d 59 (1964); Restrepo v. State, 438 So.2d 76 (Fla. App.1983). See United States v. Rodriguez, 525 F.2d 1313 (10th Cir.1975). Cf. United States v. Sanchez-Jaramillo, 637 F.2d 1094 (7th Cir.), cert. denied, 449 U.S. 862, 101 S. Ct. 166, 66 L. Ed. 2d 79 (1980) (defendant's difficulty with English not a factor where agents informed him of his rights and otherwise conversed with him in Spanish).
In summary, the state must establish by clear and convincing evidence that under the totality of the circumstances, some of which are listed above, the defendant's consent was given freely and was sufficient to encompass the search that followed. The trial court's analysis of the relevant factors and its conclusion, however, are not subject to de novo review. We must review the evidence in the light most favorable to the trial court's decision. The appellate court then determines only whether the evidence, viewed in the light most favorable to the finding and considering the degree of proof required, substantially supports the finding. State v. Bidegain.
In State v. Cohen the New Supreme Court adopted the three-tiered analysis set out in United States v. Recalde, 761 F.2d 1448 (10th Cir.1985), for determining whether a consent is voluntary. First, there must be clear and positive testimony that the consent was unequivocal and specific. Second, the government must establish that the consent was given without duress or coercion. Finally, we view the first two elements with a presumption against waiver of constitutional rights.
The scope of a consent search is limited by the actual consent. United States v. Dichiarinte, 445 F.2d 126 (7th Cir.1971); Honig v. United States, 208 F.2d 916 (8th Cir.1953); State v. Alderete, 88 N.M. 619, 544 P.2d 1184 (Ct. App.1976). If a search exceeds the scope of the consent that is given, the search must fail under the first tier of the United States v. Recalde test,
since there would not have been unequivocal and specific consent to the search that was performed. A search beyond the scope of consent is, therefore, not pursuant to a voluntary consent.
b. Applying Standard to Facts.
In the light most favorable to the state, the evidence is that Officer Toler twice asked if he might look inside the car. The second time Officer Toler asked, he had searched the trunk and searched the luggage in the trunk.
We cannot say as a matter of law that acquiescence is a request to look into a vehicle is an affirmative consent to a thorough search. Cf. United States v. Covello, 657 F.2d 151 (7th Cir.1981) (defendant signed form authorizing a "complete" search of his vehicle); United States v. Torres, 663 F.2d 1019 (10th Cir.1981), cert. denied, 456 U.S. 973, 102 S. Ct. 2237, 72 L. Ed. 2d 847 (1982) (defendant signed consent to a complete search; it logically follows permission to search contemplates a thorough search). That, however, is not the question on appeal. Rather, the question is whether the evidence will support an inference that defendant voluntarily consented to a search of his car. See State v. Austin, 91 N.M. 793, 581 P.2d 1288 (Ct. App.1978). If the evidence permits an inference that defendant consented to a search of the car, the trial court's ruling must be sustained on the ground that the consent given was unlimited. Id. In this event, there is no issue as to the sc
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