What is the test for showing consent in a case where a man was asked to go to the police station to be interviewed as a potential witness?

California, United States of America


The following excerpt is from The People v. Martinez, B211420, Los Angeles County Super. Ct. No. BA325247 (Cal. App. 2010):

Appellant contends that Kaupp v. Texas (2003) 538 U.S. 626, requires a finding that his affirmative answer to whether he would go with the officers to the station, was not a valid showing of consent under the circumstances. The case is distinguishable. In Kaupp, the officers went into the defendant's home at about 3:00 a.m. without a warrant, woke him by shining a flashlight in his face, identified themselves, and told him they needed to talk. (Id. at p. 628.) The defendant was taken to the station in handcuffs, shoeless, and dressed in boxer shorts and a T-shirt. (Ibid.) The court held that the defendant's response of "Okay" when told they needed to talk was "no showing of consent under the circumstances" because he was presented with no option but to go with the officers, and his doing so was nothing more than "'a mere submission to a claim of lawful authority.'" (Id. at p. 631.)

The present case is closer to People v. Zamudio (2008) 43 Cal.4th 327. In that case an officer approached defendant and asked if he would go to the police station to be interviewed as a potential witness and provide background information. (Id. at p. 342.) The defendant did not show any hesitation or unwillingness in going and did not indicate that he did not want to go. The court held that the evidence supported the conclusion that there was "no threat or application of force, no intimidating movement, no brandishing of weapons, no blocking of exits, and no command associated with the officers' request that

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