Here, A.L.-C.'s mother falls within one such category, and no such superseding considerations are alleged.¶20 While our reasoning today may appear to conflict with some of the language in People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977), it supports the holding in that case. In Hayhurst, we considered nearly identical language under an earlier version of section 19–2–511(1).
Here, A.L.-C.'s mother falls within one such category, and no such superseding considerations are alleged.¶20 While our reasoning today may appear to conflict with some of the language in People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977), it supports the holding in that case. In Hayhurst, we considered nearly identical language under an earlier version of section 19–2–511(1).
A significant majority of the states that have considered the issue apply the Schneckloth totality of the circumstances test in assessing whether consent was voluntary for purposes of their state constitutions, and do not require an express advisement of the right to withhold consent. E.g., Henry v. State, 621 P.2d 1, 4 and n. 9 (Alaska 1980); State v. Knaubert, 27 Ariz. App. 53, 56-57, 550 P.3d 1095 (1976), overruled on other grounds by State v. Grilz, 136 Ariz. 450, 666 P.2d 1059 (1983); People v. Hayhurst, 194 Colo. 292, 295-96, 571 P.2d 721 (1977); State v. Thompson, 284 Kan. 763, 779-81, 166 P.3d 1015 (2007); Scott v. State, 366 Md. 121, 145, 782 A.2d 862 (2001), cert. denied, 535 U.S. 940, 122 S. Ct. 1324, 152 L. Ed. 2d 231 (2002); Reese v. State, 95 Nev. 419, 421, 596 P.2d 212 (1979); State v. Osborne, 119 N.H. 427, 433, 402 A.2d 493 (1979); State v. Robinette, 80 Ohio St. 3d 234, 245, 685 N.E.2d 762 (1997); State v. Flores, 280 Or. 273, 279-82, 570 P.2d 965 (1977); Commonwealth v. Cleckley, 558 Pa. 517, 527, 738 A.2d 427 (1999); State v. Cox, 171 S.W.3d 174, 181-84 (Tenn. 2005); State v. Contrel, 886 P.2d 107, 111-12 (Utah App. 1994), cert. denied, 899 P.2d 1231 (Utah 1995); State v. Zaccaro, 154 Vt. 83, 88-91, 574 A.2d 1256 (1990); State v. McCrorey, 70 Wash. App. 103, 110-11, 851 P.2d 1234, review denied, 122 Wash. 2d 1013 (1993); State v. Rodgers, 119 Wis. 2d 102, 114-15, 349 N.W.2d 453 (1984). For many of the reasons set forth in part I of this opinion, however, I believe that the cases that have rejected Schneckloth ar
Those states that have addressed this issue, however, have, for the most part, rejected the notion that knowledge of one's right to refuse consent to a warrantless search is required under the applicable state constitution, opting instead to follow the federal voluntariness standard which focuses on the totality of the circumstances as opposed to any one factor. See, e.g., State v. Knaubert, 550 P.2d 1095 (Ariz.Ct.App. 1976);People v. Hayhurst, 571 P.2d 721 (Colo. 1997); State v. Berry, 526 S.W.2d 92, 98 (Mo.Ct.App. 1975); State v. Osborne, 402 A.2d 493 (N.H. 1979); State v. Robinette, 685 N.E.2d 762 (Ohio 1997);Oregon v. Flores, 570 P.2d 965 (Or. 1977); State v. Contrel, 886 P.2d 107, 111-12 (Utah 1994); State v. McCrorey, 851 P.2d 1234 (Wash.Ct.App. 1993); and State v. Buzzard, 461 S.E.2d 50 (W.Va. 1995). Consistent with the pronouncements of the United States Supreme Court in Schneckloth, these cited decisions recognize that such knowledge on the part of the subject of the search may be a factor in acertaining whether consent was voluntarily given, but decline the invitation to render such a factor determinative of that issue.
; People v. Saiz, 620 P.2d 15, 19-20 (Colo. 1980) ("By requiring the presence of a parent, legal guardian, or attorney during the advisement of rights under Miranda v. Arizona and during any interrogation, the statute provides 'an additional and necessary assurance that the juvenile's Fifth Amendment right against self-incrimination . . . will be fully afforded to him.'") (citation omitted) (quoting People v. Maes, 194 Colo. 235, 237, 571 P.2d 305, 306 (1977); People v. L.A., 199 Colo. 390, 392, 609 P.2d 116, 118 (1980) ("[t]he purpose of [the] section . . . is to provide assistance to the child in determining whether to exercise or to waive the privilege against self-incrimination and right to counsel"); People v. Hayhurst, 194 Colo. 292, 297, 571 P.2d 721, 725 (1977) ("The statute is designed to provide the child parental guidance during police interrogations, and thereby provide at least some assurance that the child's waiver of rights will be made knowingly and intelligently."); People in the Interest of L.B., 33 Colo. App. 1, 3-4, 513 P.2d 1069, 1070 (1973) ("The statutory requirement of the presence of a parent or guardian at the interrogation of a child by law enforcement officers is designed to provide parental guidance and assistance to the child and thereby to provide at least some minimal assurance that a child's waiver of his right against self-incrimination is knowingly and intelligently made.").
The People urge that Jennings qualifies under the statute because she was merely upset with Legler due to her possible involvement in a crime. See People v. Hayhurst, 194 Colo. 292, 298, 571 P.2d 721, 726 (1976) (holding that a parent who was upset with his son for being arrested did not necessarily have interests adverse to those of the child). However, we find Hayhurst to be inapposite because the record reveals that this was not merely a case of an angry grandparent, but one where the grandparent's legal interests were objectively hostile to those of the juvenile.
Schneckloth, 412 U.S. at 248-49; Helm, 633 P.2d at 1077; People v. Elkhatib, 632 P.2d 275, 278 (Colo. 1981); People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977). Similarly, the clear lesson of cases from other jurisdictions is that while misrepresentation by the police about the purpose of a search may weigh against a finding of consent, see, e.g., Alexander v. United States, 390 F.2d 101 (5th Cir. 1968), and while a defendant's knowledge of the purpose of a search may be indicative of consent, see, e.g., United States v. Bailey, 447 F.2d 735 (5th Cir. 1971), such knowledge is not a prerequisite of voluntary consent to a search.
A consent to search must be voluntary in the sense that it must be the product of a free choice and must not be the result of duress, coercion, threats, or promises that are calculated to flaw the free and unconstrained nature of the decision. E.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973); People v. Elkhatib, 632 P.2d 275 (Colo. 1981); People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977). The prosecution has the burden of proving the voluntariness of a consent, and that burden requires more than a mere showing of submission to a claim of lawful authority.
Voluntariness is a question of fact to be determined from the totality of circumstances; and while the suspect's knowledge of a right to refuse testing is a factor to be taken into account, such knowledge is not a prerequisite to establishing the voluntary character of a consent search. Schneckloth v. Bustamonte, supra at 248-49, 93 S. Ct. at 2059, 36 L.Ed.2d at 875; People v. Elkhatib, 632 P.2d 275 (Colo. 1981); People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977). In a consent search, the prosecution bears the burden of proving voluntariness by clear and convincing evidence.
People v. Elkhatib, 632 P.2d 275 (Colo. 1981); People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977); see also People v. Savage, supra; People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980); People v. Ramirez, supra; People v. Traubert, supra. To the extent that findings of voluntary consent are limited by Phillips v. People, supra, to the instances in which the person giving the consent knew that he could properly refuse to permit a search conducted without a warrant, Phillips is overruled.