Articles Posted in Commentary and Opinion

QUESTION: Law enforcement officers went to Castellanos’s residence after receiving information from a confidential informant that Castellanos was in this country illegally, was selling a large quantity of drugs from his residence, and had a cousin who had been kidnapped and killed. The officers arrived at 6:15 a.m. The door was partially open. The officers knocked on the door, but no one answered. Neighbors reported no traffic in or out of the residence for about a week. Because the officers had information concerning a possible kidnapping and murder offense, the officers entered the residence to verify the welfare of the occupants. Finding no one inside, the officers left the residence.

As they left, Castellanos arrived and started to pull into the driveway. However, when he saw the officers, he drove away. The officers followed Castellanos for two blocks before stopping him for weaving. Detective Ortiz and another officer saw that Castellanos was “pretty drunk,” stumbled out of the truck, and had urinated on himself. At first, Castellanos refused to give his name and said “Just arrest me.” Castellanos then identified himself as “Guillermo Lujan,” and claimed that his identification was at home. Detective Ortiz requested consent to search Castellanos’s home and vehicle, but Castellanos did not reply. Detective Ortiz decided not to press the consent issue because Castellanos was intoxicated. The officers handcuffed Castellanos and transported him back to his residence to verify his identity. When they got to the residence, the police took off the handcuffs. Castellanos opened the unlocked door of his home and entered and the officers followed Castellanos i nside. Castellanos did not object to the officers entering the residence with him. Once inside the residence, Castellanos sat down on a couch in the living room. The officers asked Castellanos for the location of his identification, but he did not answer. Detective Ortiz asked for consent to search the home. Castellanos asked if the officers had a warrant, and when they said no, he refused to give consent. After Castellanos refused consent, the officers again asked Castellanos for his identification and Castellanos “kind of flipped his hand” in the direction of his bedroom. They went into the bedroom, and discovered a notebook with names, numbers, and monetary figures that appeared to list drug-dealing transactions. Detective Ortiz decided Castellanos was too intoxicated to give consent, and applied for a search warrant. During the execution of the search warrant, the officers discovered more evidence of drug dealing, cash, and weapons. Did the officers obtain lawful consent for the search?

ANSWER: No. However, mere intoxication was not enough to render consent to search involuntary. In each case, the question focused on mental awareness so that the act of consent was the consensual act of one who knew what he or she was doing and had a reasonable appreciation of the nature and significance of his or her actions. A fundamental flaw existed in the government’s position that Castellanos consented to a search of the bedroom. The record indicated the officers failed twice to obtain consent from Castellanos to search his home. The first attempt occurred at the traffic stop. Castellanos did not respond, and Detective Ortiz did not push the issue because Castellanos was too intoxicated. The second attempt occurred in Castellanos’s living room. Detective Ortiz asked Castellanos for consent to search his home. Castellanos asked if the officers had a warrant. When told no warrant existed, Castellanos refused to consent to a search. It was clear from the rec ord Castellanos never expressly authorized the officers’ search of the residence or entry into his bedroom. Under the totality of the circumstances, the officers’ entry into the residence’s living room was reasonable. However, allowing an officer to enter one’s home and allowing the officer to search the home were two very different matters. When a person permitted an officer to enter the person’s home, the officer did not have free reign to wander around the home and search any area of the house without further consent. In fact, Castellanos expressly refused consent to search his residence. Consent to search could be inferred from gestures and other conduct. However, in this case, the officers believed Castellanos, who was not under arrest, was too intoxicated to consent to a search of his residence. The record showed Detective Ortiz requested a search warrant for the residence because Castellanos was too inebriated to consent. If Castellanos’s intoxication was such that th e officers believed Castellanos was incapable of giving consent to search, it was clear Castellanos did not possess the capacity to give implied consent. Under the facts of the case, it was not reasonable for the officers to infer Castellanos impliedly consented to their entry into his bedroom when Castellanos “kind of flipped his hand” in that direction.