The established test to determine whether consent was voluntary (versus involuntary and, therefore, acquiescence to police authority) is for the court to consider the “totality of the circumstances.” Analyzing the actions of the accused from the reasonable person standard, the trial courts are to look at three factors to determine whether the consent to search was voluntary: (1) the time and place of the encounter, (2) the number of officers present, and (3) the officers’ words and actions; a court analyzes these factors from the perspective of a reasonable person, untrained in the law, deciding whether he or she is free to end the encounter.[
An “affirmative defense” is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability. In layman’s terms, “I did it, but my act is justified or excused.” If the defense is accepted by the jury, then the verdict must be “not guilty” because the entire criminal act is excused or justified (and, therefore, legally negated). If the defense is not accepted, the accused has admitted to all the elements of the offense (and usually convicted him or herself).