California, United States of America
The following excerpt is from People v. Toulson, 272 Cal.App.2d 181, 77 Cal.Rptr. 271 (Cal. App. 1969):
When the police have grounds and opportunity to obtain a search warrant, but choose to travel the alternate route of consent, they assume the risk of their investigative endeavors being rendered nugatory. (People v. Currier (1965) Supra, 232 Cal.App.2d 103, 111, 42 Cal.Rptr. 562.) They assume a quasi-judicial task of themselves deciding at the scene and in course of investigation whether they have obtained a valid consent. '(T)he officer engaged in the often competitive enterprise of ferreting out crime' in making a split-second decision is bound to make more errors than a 'neutral and detached magistrate' passing upon an application for a warrant. (Cf. PEOPLE V. MARSHALL (1968) SUPRA, 69 CAL.2D ---, ---, 69 CAL.RPTR. 585, 588, 442 P.2D 665, 668.)F
In justifying a consent in a judicial proceeding the People have the burden of putting on record sufficient facts of the surrounding circumstances from which it may be determined that an apparent consent was in fact and in law freely and intelligently given. (People v. Gorg (1955) 45 Cal.2d 776, 782, 291 P.2d 469.) The record in this case does not reflect a fulfillment of this burden. Without such requirement there can be no judicial safeguards against invalid consents. Nor can the possibility that the informant placed the three hand-rolled cigarettes on the dresser be overlooked.