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Zwingelberg v. State4/13/2005
ld be taken if Mr. Zwingelberg did not come to the door or Mrs. Zwingelberg did not allow officers into the home.
When the State relies on consent to authorize a search, the State must prove that the consent was "voluntary, unequivocal, intelligently given, and not the product of duress or coercion." Whether consent to a search is coerced is a question that must be assessed based on the totality of the circumstances. When we review the superior court's conclusions regarding the accused's state of mind and the issue of voluntariness, we examine the entire record and make an independent determination.
Judge Collins found that the communication between Mrs. Zwingelberg and the officers was cordial. Judge Collins also found that while Mrs. Zwingelberg's statements "were at times equivocal," Officer Bunnell testified credibly that Mrs. Zwingelberg's words and body language were such that the officer believed she had consented to the officers remaining on the porch while she talked to her husband. Judge Collins also found that Mrs. Zwingelberg never asked the officers to leave the premises; that the officers never attempted to force their way inside; that the officers never implied that Mrs. Zwingelberg must allow them to enter or that Zwingelberg must exit; and that the officers never threatened to take certain action if Mrs. Zwingelberg did not allow them to enter.
We have independently reviewed the record and agree with Judge Collins's conclusions. The communication between the officers and Mrs. Zwingelberg does not reflect duress or coercion. The discussion was apparently polite and the officers made no threats, while consistently requesting to talk with Zwingelberg. Mrs. Zwingelberg ultimately admitted the officers into the house in clear words,"O.K., come on in[.]"
Conclusion
The judgment of the superior court is AFFIRMED.
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