Does ''Initial Consent'' to a Search Constitutes ''Continuing Consent'' to Other Searches ?
In Sanchez v. State, 982 S.W.2d 929 (Tex. App. --Austin 1998, no pet.) the Court held that the defendant's consent to search did not "carry over" to the second search because Sanchez was in jail and was "not given the opportunity to revoke his previous consent." Sanchez, 982 S.W.2d at 930.
In addition, Sanchez had refused to sign a written consent form and only allowed the officer to search the first time in his presence. See id.
In Brocho, the defendant consented to a search of his home; at that time, the police did not know whether his wife's death was an accident or murder. See State v. Brocho 237 A.2d at 420 ,(Me. 1967).
The next day, however, after the defendant was arrested, the police conducted a second search. See id. at 421.
The court rejected the contention that initial consent to search remained valid until revoked, and noted that continuing consent would be inappropriate where the defendant had ceased to be a cooperating husband and became the accused. See id.
In State v. Grega, 168 Vt. 363, 721 A.2d 445 (Vt. 1998), in a trial for the murder of his wife, Grega relied on "Brocho for the proposition that his consent [to search a condominium where his wife's body was found] expired once he became a suspect in his wife's death." Grega, 721 A.2d at 453.
The Vermont Supreme Court rejected Grega's reliance on Brocho and pointed out that Grega was neither arrested nor charged when he gave his consent for the search of the condominium, and Grega did not withdraw his consent before being placed in custody.
The court "concluded that under these circumstances the police did not exceed the scope of the defendant's consent by continuing their search on two subsequent days." Id.
State v. Fredette, 411 A.2d 65 (Me. 1979), decided after State v. Brochu 237 A.2d at 420 ,(Me. 1967) by the same court, was an appeal from an order denying in part and granting in part appellant's motion to suppress evidence. See Fredette, 411 A.2d at 66-70.
The facts in Fredette are more like those in this case than were the facts in Brocho.
On May 26, 1978, officers entered Fredette's home with her consent to investigate the shooting of her husband. See id.
Fredette accompanied her husband when he was taken to the hospital. See id.
The officers informed Fredette of their desire to protect any evidence on the premises and Fredette did not object. See id.
The officers secured and searched the house. See id.
The officers maintained control of the house until May 29. See id.
During the time the officers were in control of the house, Fredette on at least two occasions re-entered the house to obtain clothing for herself and her children. See id.
When she re-entered the house an officer accompanied her and inventoried the items she removed. See id. Fredette at no time indicated that she wanted the officers to discontinue their search. See id.
The Maine Supreme Court vacated the portion of the trial court's order suppressing evidence and affirmed that portion of the trial court's order denying suppression of evidence. See id.
In Phillips v. State, 625 P.2d 816, 816-18 (Alaska 1980), the defendant moved the trial court to suppress evidence, including a knife, obtained in a cabin where Yakasoft and appellant lived and where the victim's body was found. See, 625 P.2d at 816-17.
The Alaska Supreme Court held that the Yakasoft's initial consent for the search, which was not withdrawn, "extended to the subsequent entries and the investigators' thorough and probing search." Id. at 818.
The court affirmed the trial court's denial of Phillips' motion to suppress. See id.