People v. Helm9/21/1981
note 12."
Id. at 617.
"12. The applicable standards for determining whether a defendant has voluntarily consented to performing the tests have been set out in Schneckloth v. Bustamonte, [citation omitted] and United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976). See People v. Traubert, 199 Colo. 322, 608 P.2d 342 (1980). In this case, however, the question of voluntariness was not argued before this court, and, it will be treated as waived."
Id. at 622. Relying on Ramirez, the county court addressed the Fourth Amendment issue, and ruled that a consent to a roadside sobriety test cannot be voluntary unless it is knowing and intelligent and the person from whom the consent is sought has been informed that he may refuse to take the test.
Implicit in the use of the knowing and intelligent standard as a measure of an effective waiver of constitutional rights is the supposition that the right waived must be known. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). In Phillips v. People, supra, we therefore defined a voluntary consent to search as one intelligently and freely given, and held that the "only requirement of intelligent consent is that the person giving the consent know that he may properly refuse to give his permission to a search conducted without a warrant," Phillips v. People, 170 Colo. at 526, 462 P.2d at 597 (emphasis added).
The county court drew on Phillips v. People for its definition of voluntary consent. However, People v. Ramirez, supra, adopts the voluntariness standards set out in Schneckloth v. Bustamonte, supra ; United States v. Watson, supra ; and People v. Traubert, supra. Schneckloth, decided four years after our decision in Phillips v. People, dispelled the notion that a voluntary waiver of Fourth Amendment rights must be preceded by an advisement that consent may be withheld. In Schneckloth, the United States Supreme Court held
"... when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrates that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from 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."
Id. at 248-249. In United States v. Watson, supra, the Court extended the Schneckloth test to the subject of a custodial search:
"... The fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search."
Id. at 424.
We have followed Schneckloth on many occasions. People v. Elkhatib, 632 P.2d 275 (1981) (S. Ct. No. 80SA247, announced July 20, 1981); People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977); see also People v. Savage, supra ; People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980); People v. Ramirez, supra ; People v. Traubert, supra. To the extent that findings of voluntary consent are limited by Phillips v. People, supra, to instances in which the person giving the consent knew that he could properly refuse to permit a search conducted without a warrant, Phillips is overruled.
In Schneckloth, the Court accommodated two competing concerns: "the legitimate n
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