Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965). Proof of voluntariness is a question of fact, State v. Plas, 80 Nev. 251, 391 P.2d 867 (1964), and must be proven by clear and convincing evidence, McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970), and the mere fact it was given while in the custody of a police officer (or here the presence, because Lee was not yet placed under arrest) does not render the consent involuntary. State v. Plas, supra; McIntosh v. State, supra.
See United States v. Watson, 423 U.S. 411, 424, (1976) ("[T]he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search."); Sparkman v. State, 95 Nev. 76, 79-80, 590 P.3d 151, 154 (1979) (concluding that "the consent to search must be voluntarily given, and not the product of deceit or coercion, express or implied" but that "[t]he mere fact that the consent was given while appellant was in custody does not render it involuntary"); McIntosh v. State, 86 Nev. 133, 136, 466 P.2d 656, 658 (1970) (concluding that the mere fact that a defendant consents to search while in police custody does not render the consent involuntary). As to appellant's claim that the police conducted a warrantless search of the cell phone, we conclude that he has not shown plain error because he had no standing to claim the protection of the Fourth Amendment.
The district court found credible the arresting officer's testimony that Davidson consented to a search and concluded that the consent was voluntary given the totality of the circumstances. See McMorran v. State, 118 Nev. 379, 383, 46 P.3d 81, 84 (2002); Mcintosh v. State, 86 Nev. 133, 136, 466 P.2d 656, 658 (1970). Because the record supports these determinations, we conclude that the district court did not err by denying Davidson's motion, and we
"The State bears the burden of proving consent by '[c]lear and persuasive evidence.'" McIntosh v. State, 86 Nev. 133, 136, 466 P.2d 656, 658 (1970) (quoting Thurlow v. State, 81 Nev. 510, 515, 406 P.2d 918, 921 (1965)). The district court found that when the officers came to the residence, Howe clearly repeated "No" but that this response could be interpreted in two ways: as an answer to the questions regarding whether Howe was involved in drug dealing or in response to the questions regarding entry into the house.
The burden is on the state to prove the "voluntariness" of the consent by clear and persuasive evidence; the question being essentially one of fact determined from the totality of the surrounding circumstances. Surianello v. State, 92 Nev. 492, 553 P.2d 942 (1976); Lamb v. State, 89 Nev. 570, 516 P.2d 1405 (1973); McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970). Our examination of the circumstances surrounding appellant's consent to the search reveals that the police had probable cause to believe a felony had been committed.
Geer v. State, 92 Nev. 221, 548 P.2d 946 (1976). 4. Since the record contains substantial evidence that the seizure of marijuana from the trunk of the car was with the voluntary consent of the accused, he has waived any right now to assert a Fourth Amendment violation. McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970). Affirmed.
83 Ariz. 279, 320 P.2d 467 (1958). See also: People v. Cantrell, 8 Cal.3d 672, 105 Cal.Rptr. 792, 504 P.2d 1256 (1973); State v. Smith, 12 Wn. App. 720, 531 P.2d 843 (1975); McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970). The statements (confessions) were admissible in the event proof of corpus delicti were ultimately submitted.
Even assuming his initial premise, as did the trial court, the result Surianello urges does not follow — as the court below properly observed. In McIntosh v. State, 86 Nev. 133, 136, 466 P.2d 656, 658 (1970), where the defendant had been stopped by a police officer who lacked probable cause and while in custody consented to a search of his suitcase in the trunk of his car, this court said, in ruling on the validity of the consent: "Obviously, the search of the suitcase was not incident to a valid arerst [sic], and if it is to be upheld it must depend upon appellant's consent.
Although appellant claims to have been a tenant there, with sole right of control over the room he commonly occupied, cf. Stoner v. California, 376 U.S. 483 (1964), the record warrants a determination that he was merely a guest at the sufferance of his parents, who retained full right of control over the subject premises. Appellant also contends his Fourth Amendment rights were violated by the admission of evidence found in his vehicle, because voluntariness of his consent to search was not shown by clear and persuasive evidence, cf. McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970). "Voluntariness is a question of fact to be determined from all the circumstances," Schneckloth v. Bustamonte, 412 U.S. 218, at 248-49 (1973), and the record supports the trial court's determination that appellant's consent was in fact voluntarily given.
It would appear to be better practice to require independent proof of the corpus delicti before a confession is admitted into evidence in order to permit the court to weigh the issue properly. People v. Cullen, 37 Cal.2d 614, 234 P.2d 1, 7 (1951); McIntosh v. State, 86 Nev. 133, 466 P.2d 656, 658 (1970); State v. Brown, 485 P.2d 444, 446 (Or.App. 1971); VII Wigmore, Evidence § 2073 at 404 (3d ed. 1940); Annot., 45 A.L.R.2d 1316, 1338-1341 (1956). Cf. Pedersen v. State, 420 P.2d 327, 337-338 (Alaska 1966).