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Homeowner provided consent to search the home


In 1997, after Mandy Gilbreath‘s daughter attempted to sell marijuana at school, Bill Wilbourne, constable for Scott County, and David Gilmore, chief of police in Sebastopol, drove to the home of Mandy Gilbreath. Because the officers suspected that the child brought the marijuana from home, they wished to search the premises. Upon arrival, Wilbourne asked for permission to search Gilbreath’s home.

Gilbreath signed a consent form allowing Wilbourne and Gilmore to conduct a complete search of her mobile home and an adjacent vacant house. Wilbourne testified that Gilbreath’s consent was voluntarily given and absent of coercion or threats by the police. However, Wilbourne indicated that he warned Gilbreath of the consequences of refusal, which included the issuance of a search warrant and police surveillance during the interim.

Gilbreath, wanting to save time, showed police the marijuana hidden inside her bedroom closet. Police then searched the adjacent vacant house and found a live marijuana plant. Gilbreath stated that she would take full responsibility for all the marijuana found. After retrieving the marijuana, police concluded the search and arrested Gilbreath.

Gilbreath was convicted of possession of marijuana and sentenced to three years. On appeal, she argued the search was illegal. MCOA affirmed.


The Fourth Amendment generally prohibits warrantless entry of a person’s home, whether to make an arrest or to search for specific objects. This prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the premises.

Voluntary consent is a question of fact to be determined from surrounding circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

During the trial, Constable Wilbourne and Officer Gilmore testified that Gilbreath gave written consent to search her mobile home when she signed the consent to search form. Although Gilbreath was initially hesitant about signing the consent form, she acquiesced after Wilbourne and Gilmore warned that police would seek issuance of a search warrant and remain on the property during the interim.

Gilbreath argues that this conduct constituted custody and coercion because she did not feel free to leave. However, the officers were merely securing the scene from possible removal of the contraband during the issuance of a warrant. Viewing the surrounding circumstances under which consent was given, we find that Gilbreath was not in custody or coerced at the time of consent.

Constable Wilbourne indicated that Gilbreath’s consent was not the product of coercion, threats, or promises. There was no indication that Gilbreath was intoxicated or unable to understand that police intended to conduct a search of the premises. On direct, Gilbreath testified that she wanted to save police the trouble of conducting the search by turning over the marijuana. In fact, Gilbreath directed the officers to the location of the marijuana in the bedroom closet and accepted responsibility for the marijuana found in the closet and for the plant found in the vacant house next door.

We hold that Gilbreath’s consent for Wilbourne and Gilmore to search the mobile home and the vacant house rendered the search lawful so that the fruits of the search were properly admissible against Gilbreath.