because nothing established that the defendant knew of her right to refuse consent, defendant’s consent to search her bags did not constitute an intelligent waiver of her rights
How later courts described this case
- because nothing established that the defendant knew of her right to refuse consent, defendant’s consent to search her bags did not constitute an intelligent waiver of her rights
- noting the Gibson court’s requirement of an intelligent waiver
Written by the judges who cited it.
The opinion
*448 DEL SOLE, Judge,
concurring.
I concur with the Majority’s decision to suppress the fruits of the search. However, my review of the record convinces me that there is no testimony which would support an initial determination of a consent to search.
Sergeant Hendricks testified that the defendant did not understand English and an interpreter was necessary to give Miranda warnings at the police station. Further, he stated that he did not speak Spanish.
There is no testimony which would supports a finding that the defendant consented to a search, meaning it was with knowledge that a search would not be conducted if refused. As recently as March of this year, our Supreme Court reiterated the need of intelligent waiver. In Commonwealth v. Gibson, 536 Pa. 123 , 638 A.2d 203 (1994) it held:
In order for consent to an otherwise illegal search to be valid, the consent must be unequivocal, specific and voluntary. [citations omitted] It is only where there is an intentional relinquishment or abandonment of a known right or privilege that an effective waiver can be found, [citation omitted] The subject of a search must be made aware of his rights against a warrantless search for a waiver to be intelligent.
131, 638 A.2d at 207 .
Given that lack of evidence, I conclude the initial showing by the defendant of the bags contents was without consent. Therefore, I do not find it necessary to hold that the defendant, by his actions, limited the extent of an otherwise valid search.