CRIMINAL: BOTTO V. COM. (COA 12/15/2006)

BOTTO V. COM.
CRIMINAL:  Waiver, voluntariness
2005-CA-002081
PUBLISHED: AFFIRMING; COMBS
DATE RENDERED: 12/15/2006

COA found defendant Botto’s waiver of right to remain silent and consent to search to be voluntary.  The first sentence of the form she signed stated: “before we ask you any questions, you must understand your rights . . . .”  with the first right listed being “the right to remain silent.”   The court further observed that Botto was an adult and that she made no claims of illiteracy, a learning disability, or any impairment that would have prevented her from reading and understanding the form. 

The United States Supreme Court has held that a law enforcement officer does not violate the Fourth Amendment’s prohibition of unreasonable seizures “merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.”  Therefore, it was permissible for the police to question the Defendant Botto and to ask for her consent to search her person — even if they did not have a basis for suspecting illegal activity on her part.  Thus, the voluntariness of Bott’s waiver was also supported by substantial evidence and may not be disturbed on appeal.

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