Officer’s False Promise About Towing Negates Search
Sadly, police often will sense a suspect’s anxiety in investigating a crime and manipulate that anxiety to gather more information or evidence than is lawful. The following case exemplifies this situation.
In 2021, in rural Yolo County, in the City of Winters, Mr. Juan Boitez was driving his mother’s car with a passenger in the front seat. It was about 7:00 p.m. City of Winters Police Officer Gordon Brown pulled over Mr. Boitez for failing to come to a complete stop at an intersection.
Mr. Boitez then pulled over and Officer Brown asked Mr. Boitez for his license, registration and proof of insurance. Mr. Boitez did not have a driver’s license, but he gave the officer his California identification card.
While Officer Brown was relaying the vehicle information back to the police station and having the station run a check on Mr. Boitez for any warrants or if he was on probation or parole, he said to his fellow officer in reference to Mr. Boitez and his passenger, “bad guys.” The other officer agreed, saying “bad guys.” Officer Brown then commented, “[t]hey probably have dope on them.” Officer Brown continued, “They’re dirty dudes, man.”
Officer Brown then noticed Mr. Boitez had a blue bandana attached to his waist and asked him if he was a Sureño member. Mr. Boitez said, “Yeah,” but that he was “just doing my own thing” and he no longer represented the gang.
Mr. Boitez then received a phone call from his sister on his cell phone and he briefly answered it. His sister then came to the scene.
Officer Brown asked her if she had a valid driver’s license and she said she did.
Officer Brown then told Mr. Boitez that he could tow the car, but if Mr. Boitez allowed Brown to search the car, he would not tow the car. Brown suggested Boitez’s sister could then drive the car home with him.
Brown further explained that if the car was towed, it would be in storage for at least two days, “maybe three” and that there would be towing and impound fees to get the car back.
Mr. Boitez then agreed to let the officer search the car if the car was not towed.
Officer Brown’s partner then searched the car and found a loaded gun under the passenger seat. The passenger was then searched and officers discovered a loaded gun on the passenger.
Mr. Boitez was then arrested for being a felon in possession of a firearm, being a felon in possession of ammunition, unlawfully carrying a loaded firearm in a vehicle and driving on a suspended license.
Mr. Boitez filed a motion to suppress all evidence because Officer Brown elicited consent to search that was not an intelligent and knowing waiver of his Fourth Amendment rights based on a false promise of leniency. Moreover, Mr. Boitez pointed out that Officer Brown did not have the right to tow the vehicle based on the driver having a suspended license.
At the hearing on the motion to suppress, the trial court judge denied the motion because it found that Mr. Boitez gave consent to search the car.
Mr. Boitez then appealed the ruling to the California Court of Appeal for the Third District in Sacramento, which reversed the trial court and remanded the case to the trial court with directions to vacate its order denying the motion and to enter a new order granting the motion.
The Third District explained that “the voluntariness of the consent [to search] is in every case a question of fact to be determined in light of all the circumstances.” People v. James (1977) 19 Cal. 3d 99, 106. In determining whether defendant’s consent was voluntarily given, courts must consider any evidence that a police officer made a misrepresentation that prompted the defendant’s acquiescence to the search. U.S. v. Vasquez (1st Cir. 2013) 724 F.3d 15, 19.
Here, the Third District found that Officer Brown falsely, “but apparently with subjective belief that it was true,” stated he had authority to tow defendant’s mother’s car, but would not do so if Mr. Boitez consented to the search.
The Third District then found that the false promise of leniency not to tow the car was a material and inextricable part of the agreement inducing Mr. Boitez’s consent to search the car, and thus under the totality of the circumstances, his consent was not voluntarily given.
The critical part of this ruling that we ask the reader to note is that although the appellate court found Officer’s Brown’s statement was wrong, he had the subjective good faith that he was correct. In other words, Officer Brown was not trying to trick Mr. Boitez by misleading him. Nonetheless, his misstatement of his power to tow the car was made and that rendered the consent involuntary and hence, the evidence later found was unlawfully obtained.
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