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LU Ref# CAI00040
November 30, 2023
Author Ref. No: Vol 28 No. 11
LU Ref# CAI00040
November 30, 2023
Author Ref. No:   Vol 28 No. 11

Robert Phillips
Deputy District Attorney (Retired)

“I think senility is going to be a smooth transition for me.”
Can you coerce a subject into allowing you to search his vehicle? When is consent voluntary – or not?
COURT CASE REFERENCE: Boitez v. Superior Court of Yolo County (117/23) Cal.App.5th [2023 Cal.App. LEXIS 859]

A person’s consent to allow officers to search his or her vehicle is not voluntary under circumstances where the consent obtained is the product of coercion. Threatening to tow their vehicle where to do so would be illegal constitutes coercion. 
Defendant Juan Boitez was driving his mother’s car when he was pulled over by a city of Winters (Yolo County) police officer for failing to stop at a stop sign. Although he stopped his vehicle with his right tires more than 18 inches from the curb, being in a residential cul-de-sac, the car was not in a position where it might impede traffic. With the following events video recorded by the officer’s body camera, Boitez was asked for his license, registration, and proof of insurance. He responded that he had none of these documents, showing the officer a California identification card instead. It was quickly determined that Boitez’s license had been suspended. The sole passenger in the car did not have a license. A second officer arrived at the scene approximately 3½ minutes into the contact. A third officer also responded, although it was not indicated at what point he showed up.   Upon questioning Boitez, officers determined he was a gang member, but he claimed to no longer be active. He also believed that he “might” be on probation. The officers, however, likened the Boitez and his companion to “dirty dudes,” using this characterization several times. During the contact, Boitez’s sister arrived on the scene, having been called by Boitez when he was initially stopped. She had a license and was available to drive the car from the scene, if need be.   Continuing the contact with Boitez, the officer told him that he could have the car towed if he chose, but was “trying to cut (him) a little bit of a break,” asking Boitez at the same time if he minded whether the officer searched his car. Without waiting for a response, the officer asked Boitez: “You don't have nothing in there? There’s no guns, drugs, anything like that? Nothing, nothing bad?” Boitez did not answer, but instead simply looked toward the ground and shook his head from side to side.   The officer had Boitez sit on the curb, telling him he was going to write him a ticket for driving on a suspended license, but was not going to tow his car. Commenting that that was “a pretty good deal,” he then told Boitez that if he did tow the car, he wouldn’t get it back until Monday and would owe a fee for some two or three days for the storage.   Boitez, still looking down, nodded his head and said: “Alright.” Boitez then asked whether his sister could take the car. The officer responded: “That’s what I’m trying to work out with you, man. You be cool with me brother, I’ll be cool with you.” Boitez again nodded his head and said “Yeah,” apparently giving permission to search the car. The officer asked Boitez whether he was “good with that” and, while Boitez was nodding, asked, “Is that fair?” Boitez again responded, “Yeah.”   This equivocal conversation continued back and forth for several minutes, with the officer telling Boitez what a good deal he was getting, and Boitez, somewhat reluctantly, implying agreement with the officer that allowing a search of the car in exchange for not impounding it was, in fact, a good deal. Eventually, officers searched the car. A loaded gun was found under the passenger’s seat. A second gun was thereafter recovered from the passenger. Boitez was charged in state court with being a felon in possession of a firearm and other gun-related offenses. His motion to suppress the firearm was denied by the trial court. Boitez filed a pre-trail petition for writ of mandate with the court of appeal.