Can a purported consent to entry and search of one's home be upheld?

In Schoepflin v. United States (9 Cir. 1968) 391 F.2d 390, 398--399 the court held a purported consent to entry and search of one's apartment could not be upheld in the absence of a trial court finding that the words of apparent consent in the circumstances in which they were used 'reflected (1) an understanding, (2) uncoerced, and (3) unequivocal election to grant the officers a license which (4) (defendant) knew may be freely and effectively withheld.' The court held that no such showing had been made under the following circumstances: A robbery suspect was in bed reading a paper. Three officers went to his front door and three to the back. 'An officer rang the front door bell. (Defendant) appeared at the door in his bathrobe. The officer in charge identified himself and asked if they could come in and talk to him. (Defendant) replied: "Yes, come ahead.' The three officers who had gone to the front door then entered the apartment.' Once entry [272 Cal.App.2d 197] was gained, the officer in charge explained that they were investigating a bank robbery and a stolen gun. Defendant denied involvement. 'After four or five minutes of questioning, the officer in charge asked 'if we may search the apartment or the house. * * *' (Defendant) replied 'Go ahead, I have nothing to hide.'' A search revealed stolen money, a nylon stocking, and other articles related to the robbery being investigated.

In the instant case, the assent to entry was in response to a request by two armed officers in uniform standing at defendant's open doorway, with the defendant on the outside. These circumstances alone make the purported consent to entry suspect. In Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 268, 269, 57 Cal.Rptr. 623,

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Furthermore, the record is completely silent about the defendant's background or experience. He apparently did not even know enough to ask the officers if they had a warrant. There is nothing to show that defendant knew he had the right to refuse entry to the officers and that such refusal could not be used as affirmative evidence against him. (Cf. Tompkins v. Superior Court (1963) Supra, 59 Cal.2d 65, 68, 27 Cal.Rptr. 889, 378 P.2d 113 (slamming of a door on an officer seeking entry cannot be used to convert suspicion into probable cause to arrest); People v. [272 Cal.App.2d 198] Cedeno (1963) 218 Cal.App.2d 213, 227--229, 32 Cal.Rptr. 246.) Defendant in our case was approaching the open doorway to get back into his room with the two officers standing just outside that open doorway; not much choice was open to him.

I am aware that some cases have stated, e.g., People v. Chaddock (1967) 249 Cal.App.2d 483, 485--486, 57 Cal.Rptr. 582, 584, that '(t)he mere asking of permission to enter and make a search carries with it the implication that the person can withhold permission for such an entry or search.' This is not an invariable implication and cannot be so implied absent other evidence of the surrounding circumstances, e.g., the age, physical size, experience, and background of the person asked to consent. It is a common practice for a superior to use language sounding in terms of a polite request, when he actually intends it to be and it is so interpreted by the requestee, that an imperative is meant.