In a recent case, Tilghman v. State, No. 03-17-00803-CR (June 7, 2019), the appeal court addressed the issue of whether consent obtained by "acquiescence to a claim of lawful authority" by police is sufficennt consent to justify a search by police. The court noted that:
Consent is a "jealously and carefully drawn" exception to the warrant requirement. Georgia v. Randolph, 547 U.S. 103, 109 (2006). "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968). "This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Id. at 548-49; see Carmouche, 10 S.W.3d at 331. Moreover, consent is not voluntarily given when it is "the result of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). The voluntariness of consent "is a question of fact to be determined from the totality of all the circumstances." Id. at 227. "[I]f under all the circumstances it has appeared that the consent was not given voluntarily-that it was coerced by threats or force, or granted only in submission to a claim of lawful authority-then . . . the consent [is] invalid and the search unreasonable." Id. at 233. "Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given." Carmouche, 10 S.W.3d at 331 (citing State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997)).
In Tilghman, the police made an unlawful entry into a hotel room. The police obtained the consent of one of the guests after gaining unlawful entry into the hotel room. The couret noted that the following factors should be considered in this analysis include: (1) the temporal proximity between the unlawful entry and the given consent; (2) whether the unlawful entry brought about police observation of the particular object for which consent was sought; (3) whether the search or seizure resulted from flagrant police misconduct; (4) whether the consent was volunteered or requested; (5) whether the person consenting was made fully aware of the right to refuse consent; and (6) whether the police purpose underlying the illegality was to obtain the consent. See Orosco, 394 S.W.3d at 75 (citing Brick, 738 S.W.2d at 680-81). The Tilghman court concluded that officers obtained the consent to search the hotel room after gaining unlawful entry and based upon the Brick factors noted above, that consent was not valid because it was no more than acquiescence to a claim of lawful authority.
