Voluntary Consent to Search – Does the Maine Constitution Require Proof Beyond a Reasonable Doubt?
Posted by Edmund R. Folsom, Esq.
January 30, 2021
State v. Glenn, 2021 ME 7, decided on January 28, 2021 raises (I think) a new question: What is the burden of proof to establish that consent for a search or seizure is voluntary under the Maine Constitution?
At the relevant time, Glenn was 27 years old. He had been diagnosed with an Autism Spectrum Disorder. Police were investigating a tip that an internet protocol (IP) address connected to the residence where Glenn lived was involved in activity related to child pornography. Two officers knocked on the door of the residence one morning around 9:30 a.m. and were greeted by a woman (Deborah, the homeowner’s girlfriend) and a teenaged male (Joseph, the homeowner’s son). The officers identified themselves and asked if they could enter. Deborah let them in. Once the officers were inside, Deborah answered their questions in a way that indicated she and Joseph lived there with others. When the officers said they were conducting a child pornography investigation and asked whether anyone in the house might have downloaded anything from the internet, Deborah or Joseph said Glenn might have information about it. The officers were shown the way to Glenn’s bedroom.
Glenn answered the officers’ knock on his bedroom door. He stepped into the hallway and spoke to one of them. When the officer asked Glenn if he had any information about anyone in the house downloading child pornography, Glenn admitted downloading some. At that point, the officer asked Glenn if he preferred to speak one-on-one or with other family members present. Glenn said he would rather speak one-on-one and led the officer into his bedroom. Inside the bedroom, the officer showed Glenn images. Glenn admitted downloading them. The officer asked if Glenn would show him more downloaded images. At first Glenn declined. As the conversation continued, Glenn told the officer he had downloaded 1,600 images. He signed a consent for the officer to search his electronic tablet. Before Glenn signed the consent form, the officer told Glenn repeatedly that he did not have to consent. The officer also told Glenn if he did not consent the officer would seize the tablet and secure a warrant to search it.
Based on images found on Glenn’s tablet and his admissions to police, he was charged with 25 counts of possessing sexually explicit materials. He moved to suppress the evidence, alleging: (1) all of it was the tainted fruit of the officers’ unlawful warrantless entry to the house; (2) his statements were obtained in violation of Miranda; (3) his statements were involuntary, requiring exclusion under the U.S. and Maine constitutions; and (4) because his purported consent to the search of the tablet was not voluntary the search violated his rights against unreasonable searches and seizures under both the U.S. and Maine constitutions, requiring exclusion of the resulting evidence. The trial court denied the motion to suppress. Glenn entered a conditional guilty plea to all 25 counts. He was sentenced to probation, and he appealed.
The Police Entry of the Residence.
The Law Court upheld the trial court’s ruling that the warrantless police entry of the house was constitutional. Consent is a well-recognized exception to the requirement of a search warrant. As the Law Court points out, “An entry that is conducted pursuant to the consent of a third party is constitutional if officers, at the time the consent was given to enter a residence, reasonably believe that the consenting individual possessed sufficient authority to consent to the entry.” The validity of consent is determined by what it is objectively reasonable for an officer to believe. Even if it later turns out that the person giving consent did not in fact have authority to consent, consent provides valid grounds for lawful entry if the officers believed the person had sufficient authority to consent and if, in the circumstances, it was reasonable to believe it. Because both Deborah and Joseph answered the door, because they answered questions in a way that made it appear they lived at the residence and because they never stated that they did not live there, the officers’ belief that they had authority to consent was objectively reasonable. The search was therefore constitutionally reasonable.
The Miranda Issue.
The rule of Miranda v. Arizona is violated when a person is subjected to custodial interrogation without a valid waiver of Miranda warnings. The sole remedy for a Miranda violation is to exclude any responses to custodial interrogation from the prosecution’s case-in-chief. That is to say, if the person says something in response to custodial interrogation in violation of Miranda, and if what the person says leads to the discovery of incriminating physical evidence, the physical evidence is not excluded because of the Miranda violation. Only the un-Mirandaed statements themselves are excluded. In Glenn’s case, that means the images found on the tablet would not be suppressed because of any Miranda violation. Only Glenn’s statements in response to custodial interrogation would be excluded. But the Law Court upheld the trial court’s determination that Glenn was not in a state of Miranda “custody” when he made the incriminating statements anyway. He was questioned in a low-key manner, in a place familiar to him, he was told he was not under arrest, he was not restrained, the interview was brief and he was summonsed rather than arrested when the questioning was done. Because Glenn was not in custody, his questioning by police could not and therefore did not violate his Miranda rights.
The Voluntariness of Glenn’s Statement and Consent to Search of the Tablet — Conflation of the Search and Seizure Aspect with the Self-Incrimination/Due Process Aspect.
For purposes of constitutional analysis, the question of the voluntariness of Glenn’s statements arises from very different grounds than the question of the voluntariness of his consent to the search of his tablet. But the Law Court combined the two questions into a single analysis. This conflation of the 2 issues raises a serious question: Under the Maine Constitution, does the State bear the same burden of proof regarding the voluntariness of consent to search that it bears in proving the voluntariness of statements — proof beyond a reasonable doubt?
Both the Maine and U.S. constitutions protect against unreasonable searches and seizures. The U.S. Constitution protects against unreasonable searches and seizures of “persons, houses, papers and effects.” The Maine Constitution protects against unreasonable searches and seizures of “persons, houses, papers and possessions.” In a footnote in Glenn, the Law Court points out that Glenn raised his claims under both the U.S. Constitution and the Maine Constitution.
A state may afford greater protections against unreasonable searches and seizures than the Fourth Amendment provides, but no State is free to provide less protection. The Law Court’s search and seizure jurisprudence repeatedly finds Maine’s Constitutional protections co-extensive with, not greater than, those of the U.S. Constitution. Because of this, there is usually no strong reason to make an unreasonable search and seizure claim grounded in the Maine Constitution. The Law Court’s cases routinely apply Fourth Amendment rules and principles announced by the U.S. Supreme Court, often citing the Law Court’s own cases merely reiterating and applying the Supreme Court’s rules and principles. When a defendant does present a search and seizure claim grounded in the Maine Constitution as well as in the U.S. Constitution, the Law Court decides the case on Fourth Amendment grounds and effectively says “same” regarding the Maine Constitutional claim.
Under the U.S. Constitution, in order to be constitutionally reasonable a search must be justified by a search warrant unless it falls within a well-recognized exception to the search warrant requirement. One such well-recognized exception is a search based on consent. But to be valid, consent must be voluntary. Again, Glenn raised his search and seizure claims under both the U.S. Constitution and the Maine Constitution. In declaring the rules under which the voluntariness of Glenn’s consent to search was to be determined, the Law Court quoted the U.S. Supreme Court case, Schneckloth v. Bustamonte, and declared that the question is to be “gauged by assessing the totality of the circumstances.” In other words, to this point the Law Court simply announced that it would use the Supreme Court’s prescribed Fourth Amendment method to makes its determination under both the U.S. and the Maine Constitution – par for the well-trod course. The Law did not head off and forge a separate methodology to be applied under the Maine Constitution. But what question would the Law Court decide by assessing the totality of the circumstances? What does it mean for consent to be voluntary?
As to the totality of the circumstances themselves, in Glenn’s case they included his Autism Spectrum Disorder diagnosis. Glenn’s expert witness testified that Glenn’s ASD interfered with his ability to give knowing and voluntary consent. The state countered with an expert witness who testified that Glenn’s ASD was a mild deficit that left him capable of understanding social cues in the circumstances, able to act in his own interests, and able to understand and waive his rights. The trial judge credited the testimony of the state’s witness over that of the defense witness (in part because the State’s witness had reviewed the audio recording of the exchange between Glenn and the officer, while Glenn’s own expert witness had not). The trial court found that Glenn had the capacity to give valid consent and that he in fact gave valid consent. The Law Court found no error in that ruling. The interesting part is what the Law Court said on the way to that conclusion.
The Roots of the Constitutional Protection Against Use of Involuntary Statements, versus the Roots of the Protection Against Unreasonable Searches.
The protection against the use of involuntary statements is not guaranteed by the prohibition against unreasonable searches and seizures. Instead, under the Maine Constitution, the guaranty is rooted in the protections the individual has against being “compelled to give evidence against himself or herself” and against being “deprived of life, liberty or property without due process of law.” These protections are broader than the protections against the use of involuntary statements provided by the U.S. Constitution. Also, under the U.S. Constitution, the voluntariness of statements and confessions must only be proven by a preponderance of the evidence. Under the Maine Constitution, the voluntariness of statements and confessions must be proven beyond a reasonable doubt.
What Indicates that the Maine Constitution Requires Voluntariness of Consent to be Proven Beyond a Reasonable Doubt?
In Glenn, the Law Court a drew a parallel between its own totality of the circumstances test for determining the voluntariness of statements under the Maine Constitution and the totality of the circumstances test the U.S. Supreme Court has declared applicable to determine the validity of a consent to search under the Fourth Amendment. The Law Court’s test for the voluntariness of statements takes into account a number of factors that might bear on a person’s ability to exercise free will and rational intellect. Immediately after drawing this parallel the Court stated, “Thus, in determining voluntariness, the question is not whether the special agent reasonably believed that Glenn could provide and was providing voluntary consent, but rather whether Glenn in fact could and did provide such consent.” Instead of citing any case dealing with the validity of a consent to search for this proposition, the Law Court cited its Rees and Caouette cases which deal not with voluntariness of consent to search but with voluntariness of statements and confessions. At this point, the Court explained that an individual’s mental condition is one of many factors involved in determining whether a person has the ability to provide voluntary consent.
Given the Glenn Court’s conflation of its analyses for the voluntariness of consent to search and the voluntariness of statements; the fact that the Court’s analysis of both includes an analysis of voluntariness under the Maine Constitution in addition to the U.S. Constitution; and the fact that the State bears the burden of proof beyond a reasonable doubt on the voluntariness of statements under the Maine Constitution, has the Law Court signaled that the State must also prove the voluntariness of a consent to search beyond a reasonable doubt under the Maine Constitution? Again, the Court seldom addresses consent to search questions separately under the Maine Constitution. I am not aware of the Law Court ever specifically addressing the burden of proof for the voluntariness of consent to search under the Maine Constitution. In Glenn, on the way to finding no error in the trial court’s determination that both Glenn’s consent to search and his statements were voluntary, the Court’s only reference to the burden of proof is in its statement, “The State bears the burden to prove that a confession was voluntary beyond a reasonable doubt.” The Court makes no mention of a different burden of proof (or of any burden of proof) on the question of the voluntariness of consent to search.
When deciding the voluntariness of consent to search under a claim of involuntariness grounded in the Fourth Amendment, the Law Court’s usual burden of proof pronouncement is that the State must prove by a preponderance of the evidence that the person gave an objective manifestation of free and voluntary consent by word or gesture. But in Glenn, the Law Court tells us that the test for voluntariness of consent is not whether the officer reasonably believed Glenn provided voluntary consent but whether Glenn in fact provided voluntary consent. There must, then, be more to the test under the Maine Constitution than whether the State proves an objective manifestation of free and voluntary consent by a preponderance of the evidence. And since Glenn tells us that the Maine Constitution requires the State to prove that the defendant in fact provided free and voluntary consent, does the Maine Constitution also require the state to prove it beyond a reasonable doubt? Glenn at the very least invites the argument.
Disclaimer: The above post does not contain legal advice. It is for information purposes only and is not to be taken as legal advice. The reader does not have an attorney/client relationship with the author by virtue of reading the post.