In Florida v. Bostick, supra, _____ U.S. _____, [111 S.Ct. 2382], the United States Supreme Court was confronted with the situation of DEA officers who routinely boarded buses and asked for permission to search passenger luggage. The defendant in that case (Bostick) gave his permission and the officers discovered cocaine. Bostick moved to suppress the cocaine on grounds of violation of his Fourth Amendment rights. The Court held: "[w]e do reject, however, Bostick's argument that he must have been seized because no reasonable person would freely consent to search of luggage that he or she knows contains drugs. This argument cannot prevail because the 'reasonable person' test presupposes an innocent person." (Id., at 2388.) The court reminded "[w]e have stated that even when officers have no basis for suspecting a particular individual, they may generally ask question of that individual [Citations]; ask to examine the individual's identification [Citations]; and request consent to search his or her luggage [Citation] -- as long as the police do not convey that compliance with their requests is required." (Id., at p. 2386.) ⁽¹⁾

It is objectively reasonable to assume that an alien, not carrying narcotics, might allow a cursory visual inspection of his van's interior. It is further objectively reasonable to assume that an alien, not carrying narcotics, might allow a dog to check his vehicle. Therefore, absent a showing of subjectively felt coercion on the part of the defendant, there was nothing objectively unreasonable about Agent Bojorquez asking permission to do either of these, and there was nothing objectively unreasonable about defendant giving his consent. Therefore, Agent Bojorquez could reasonably believe that defendant's consent was valid. ⁽²⁾

In People v. James (1977) 19 Cal.3d 99, the California Supreme Court decided a case involving the denial of a motion to suppress a stolen TV set. The defendant in that case (James) was photo identified by the eyewitness victim. When the police arrived at James's home, they knocked, and when James answered the door, the police arrested and handcuffed him. They then asked his consent to search the premises. James agreed. When they entered, they saw the described TV set and seized it. The court held that the police had probable cause to arrest James on sight because of the victim's identification. Therefore, the arrest was lawful. The court then held that James's consent was valid, even while handcuffed and under arrest: "when a person of normal intelligence is expressly asked to give his consent to a search of his premises, he will reasonably infer he has the option of withholding that consent if he chooses. . . . [W]hile the fact of arrest or custody is relevant to determining whether the suspect has the will to refuse to consent, it is irrelevant to whether he has the knowledge of his right to do so. That knowledge is imparted by the request itself." (Id., at p. 116.)

This Court of Appeals in People v. Valenzuela (1993) 28 Cal.App.4th 817, acknowledged the James holding, but instead held that aliens might have a lower threshold of unreasonable coercion, due to the court's view that aliens can be deported arbitrarily. (Id., at p. 833.) But this power of the government is lawful, and it should not be weighed against it in its investigations. "'Over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens. [Citations.] . . . 'The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our adjudications.' . . . [Citation.] '[M]uch could be said for the view' that due process places some limitations on congressional power in this area 'were we writing on a clean slate,' . . . but the slate is not clean. As to the extent of the power of Congress under review, there is not merely 'a page of history' . . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government." (Kleindienst v. Mandel (1972) 408 U.S. 753, 766-767.)

As the law now stands under Valenzuela, supra, 28 Cal.App.4th 817, the INS agent cannot request an alien for consent to search, since if consent is given, it is later likely to be held invalid due to what the Valenzuela court saw as the inherently unfair character of the relationship between the INS agent and the alien. Therefore, we ask this court to reconsider its holding in Valenzuela, namely, that there is a lower threshold of unreasonable coercion in a case involving an alien's consent. We ask that this should be brought into agreement with the rule in James, supra, 19 Cal.3d 99, at 116, in which an officer's request for a person's consent confers to that person knowledge of the right to refuse, and thereby making any alleged consent more likely to be valid.

In the present case, Agent Bojorquez had just established that the defendant was lawfully in the country and that defendant had lied to him about not having been to Mexico recently. Then he made his patdown of the defendant, and he asked the defendant if he could look in his van. The record does not tell us whether the greencard was, or was not, given back to the defendant. Assuming that Agent Bojorquez was still holding the defendant's greencard, there were enough suspicious facts that needed to be cleared up quickly if possible. Why had the defendant lied about having been to Mexico? Why was he so nervous? He was a legal resident, so was the nervousness due to some other criminal activity? These reasonable questions were the motive behind Agent Bojorquez's request to look in the defendant's van. When Agent Bojorquez made this request, knowledge of the right to refuse was conveyed to the defendant, whether or not Agent Bojorquez still held his greencard. Therefore, knowing he could refuse, defendant agreed to the search. If the defendant had denied the request, this would be a different case, and the search would probably not have been warranted.

1. Citing INS v. Delgado (1984) 466 U.S. 210, 216 [104 S.Ct. 1758; 80 L.Ed.2d 247; Florida v. Rodriguez (1984) 469 U.S. 1, 5-6 [105 S.Ct. 308; 83 L.Ed.2d 165]; Florida v. Royer, (1983) 460 U.S. 491, 501 [103 S.Ct. 1319; 75 L.Ed.2d 165]; United States v. Mendenhall (1980) 446 U.S. 544, 557-558 [100 S.Ct. 1870; 64 L.Ed.2d 497]. <BACK TO TEXT>

2. Part of the reasoning in Schneckloth v. Bustamonte (1973) 412 U.S. 218 [93 S.Ct. 2041; 36 L.Ed.2d 854], was based on analogy with the test for voluntariness developed in the law of confession. (Id., at pp. 224-227.) This led the Court to a "totality of the circumstances" test and an inquiry into the actual subjective voluntariness of the defendant's consent to a search.

However, the test for voluntariness of a confession has changed since Colorado v. Connelly (1986) 479 U.S. 157 [107 S.Ct. 515; 93 L.Ed.2d 473]. In Connelly, the court held "that coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." (Id., at p. 167.) It further held "the Fifth Amendment privilege is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.' [Citation.] The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on 'free choice' in any broader sense of the word." (Id., at p.170.)

Discussing the exclusionary rule's deterrent effect upon police acting on a reasonable, but mistaken, belief in the validity of a warrant, the Supreme Court explained, in United States v. Leon (1984) 468 U.S. 897 [104 S.Ct. 340; 82 L.Ed.2d 677], "[t]he deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale losses much of its force. . . . If the purpose of the exclusionary rule is to deter unlawful police conduct, the evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." (Id., at p. 919.) <BACK TO TEXT>