State v. Gothberg

Citations

• 2024 ND 217

Syllabus

Ordinarily in cases involving consent to enter a home, entry is preceded by an exchange between a police officer and an occupant in which the officer makes an inquiry and in response the occupant verbally or physically reacts in a manner that may be interpreted as consent. Absent verbal consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police. The existence of consent is a question of fact to be determined from the totality of the circumstances. The scope of an individual's consent is determined by considering what an objectively reasonable person would have understood the consent to include. Whether consent was voluntarily given considers examination of the totality of the circumstances at the time it was given. Factors that may be considered in determining the totality of the circumstances are the characteristics and condition of the accused at the time of consent and the details of the setting in which consent was obtained, though no one factor is determinative.