Auto Search Problem

NOTE: This problem is a 95% accurate account of a real life experience from a few years ago, with the notable exception that "Larry" in my hypo, as you will see, was trafficking illicit drugs, while I was trafficking a spare tire.

Larry LaRue, a first-year law student at a semi-prestigious school in Atlanta, was returning home from Spring Break in Florida in a rented car. Larry was 22 years old, well-dressed, and well-tanned, and was driving 73 MPH in a 70 MPH zone. The rental car was a brand new Pontiac Le Mans; so new, in fact, that in lieu of a license plate, the car had a Georgia temporary cardboard plate reading "Tag Applied For."

Larry was speeding because he badly needed to find a restroom. Thus, it was doubly distressful to him when he noticed the flashing lights of a Tift County police cruiser in his rearview mirror. Larry pulled over and waited as the officer approached the car. The officer requested that Larry step out of the car, which he did. After offering a license and registration, the following exchange ensued:

Officer: You were going pretty fast back there.

Larry: Sorry.

Officer: Where are you headed?

Larry: Atlanta. I'm coming from Orlando I'm on my way back to school.

Officer: Is this your car?

Larry: It's a rental.

Officer: Are you carrying any firearms or illegal drugs in this car?

Larry: No!

Officer: Would you mind if my partner and I searched the car?

Larry: Actually, yes. I really need to get to a bathroom.

Officer: Well, it'll be a lot quicker if you just consent now. Otherwise, I'll just call the K-9 squad that that will take a while.

Larry: Um, yeah, okay.

The two officers proceeded to search the car's interior, including a suitcase that was in the back seat. This search revealed nothing. They proceeded to get the trunk key from Larry and opened the trunk, which was empty. However, when they removed the carpet from the base of the trunk, they found packed in with a spare tire a larger bag full of what turned out to be powder cocaine.

Argue for Larry that the bag of cocaine should be inadmissible against his in his ensuing drug-trafficking trial.

Chad Henderson

Emory Law

Answer

Consent must be voluntary and not the product of duress or coercion.  The Court measures voluntariness under a totality of the circumstances test.  Also, where the police threaten to obtain a warrant if consent is not given the result depend upon whether the police actually have grounds to get a warrant.  If they do, the consent will be deemed valid.  If not, the consent will not be valid and the evidence will be suppressed.