Search and Seizure - Consent – Generally

United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105 (2002)

Police offices boarded an outgoing bus before departure and asked the passengers for consent to search their luggage. The officer did not inform the passengers that they could decline to give consent. The defendants consented to a search of their luggage and persons. The Eleventh Circuit had held that the consents were not voluntary because of the coercive nature of the interdiction activity, as well as the officers’ failure to advise the passengers that they could refuse to consent to a search. The Supreme Court reversed. According to Florida v. Bostick, 501 U.S. 429 (1991), every encounter between the police and a defendant on a bus is not necessarily a “seizure.” In this case, the Court held that the failure to advise the passengers of their right to refuse consent did not taint consent that was otherwise voluntarily given.

Ohio v. Robinette, 519 U.S. 33 (1996)

If a lawful traffic stop has been made and the basis for the traffic stop has been accomplished, the police may then request consent to search the vehicle without announcing to the driver that he is free to leave.

Florida v. Bostick, 501 U.S. 429 (1991)

Police may board a bus and ask passengers consent to search their carry-on luggage. The fact that the encounter occurs on a bus does not necessarily mean that the passengers are in any way restrained, or unable to say, “No.” In this case, the officers specifically advised the passengers that they were free to reject the request. In short, the encounter did not amount to a “seizure” and the ensuing consent was therefore valid.

Florida v. Jimeno, 500 U.S. 248 (1991)

If a person consents to a search of his automobile, an officer may search all closed containers found within the automobile. The officer is not required to make a second request before opening a closed container.

United States v. Robertson, 736 F.3d 677 (4th Cir. 2013)

An officer asked the defendant for permission to search his person. The defendant begrudgingly submitted to what the Fourth Circuit concluded was a “command.” The Fourth Circuit held that this did not qualify as consent and the evidence should have been suppressed.

United States v. Lopez-Cruz, 730 F.3d 803 (9th Cir. 2013)

The defendant was asked by a federal agent if he could “search” and “look in” his cell phone. The defendant consented. The phone rang and the agent answered the call. The Ninth Circuit held that answering the call exceeded the scope of consent.

United States v. Vazquez, 724 F.3d 15 (1st Cir. 2013)

The police told the defendant that with or without her consent, the police were going to search her house. They claimed to have the authority based on the fact that her boyfriend (who the police erroneously believed lived in the house, too) was on parole and subject to a warrantless search. She consented. This was not valid consent, because it amounted to nothing more than acquiescence to a show of authority (the police did not, in fact, have the authority to conduct a warrantles search), rather than free and voluntary consent. The court noted that the officers’ subjective good faith that they had the authority to conduct a warrantless search did not exempt this case from the application of the exclusionary rule. Their good faith was not, according to the First Circuit, reasonable.

United States v. Cotton, 722 F.3d 271 (5th Cir. 2013)

The defendant, when stopped in his car, was asked by the officer if he could search the car. The defendant clearly limited his consent to searching the luggage in the car. The officer pried back the door panel and discovered drugs. This was an unlawful search. The government argued that the police had probable cause to pry open the panel once the officer saw loose screws. However, the discovery of the loose screws did not occur during a lawful consensual examination of the luggage.

Untied States v. Shaw, 707 F.3d 666 (6th Cir. 2013)

Officers had an arrest warrant for the occupant of 3171 Hendricks Street. Two houses on the block, however, were identified as 3170 Hendricks Street. The officers knocked on one of the doors and eventually, the occupant allowed the officers in. The officers falsely stated that they had an arrest warrant for an occupant of that house. The officers then searched the house and found cocaine. The consent, which was based in part on the false representation that the officers had a warrant for the occupant of that house, was not consent that authorized the police to search the house. See Bumper v. North Carolina, 391 U.S. 543 (1968).

O’Neill v. Louisville-Jefferson County Metro Govt, --- F.3d --- (6th Cir. 11/8/11)

The “consent-once-removed” doctrine provides that if a suspect consents to the entry of an undercover agent into his house, this consent also allows the police to enter, while the undercover agent is still in the house, in order to make an arrest. However, once the undercover agent leaves, the consent-once-removed doctrine no longer applies and officers may not then enter the house. That is what occurred in this civil rights case.

United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011)

The police went to the defendant’s house and explained that they were worried about a bomb being in the house (based on a tip) and the safety of the community. Eventually, the defendant consented to a search of his house. In fact, there was no tip that the defendant’s safety was in jeopardy – rather, there was tip that the defendant was a drug dealer and had firearms. The consent was tainted by this deception and trickery.

United States v. Swanson, 635 F.3d 995 (7th Cir. 2011)

The defendant was arrested on a warrant charging him with possession of a weapon in violation of state law. The judge who issued the warrant wrote on the warrant that there would be no bond, unless the defendant turned in his gun. When he was arrested, the defendant was told about the bond condition by the arresting officer before he was Mirandized. This statement by the police amounted to interrogation. The defendant responded by telling the police where his guns were in the house. The statement should have been suppressed. Later the defendant was taken to the police station where he received Miranda warnings and he gave a statement. This latter statement was inadmissible pursuant to Seibert. The court also held that the defendant’s supposed consent to search his vehicle to find an additional shotgun was involuntary, because the officers serving the arrest warrant stated that he was “ordered” to turn over all guns, thus implying that he had no choice in the matter.

United States v. McMullin, 576 F.3d 810 (8th Cir. 2009)

The police had consent to enter the defendant’s house. The police entered, then went out the back door and arrested the fugitive they were seeking and also the defendant who had followed the police out. Thereafter, without securing consent again, the police re-entered the house. The Eighth Circuit held that the initial consent did not cover the re-entry and the evidence gathered during the second entry was suppressed.

United States v. Neely, 564 F.3d 346 (4th Cir. 2009)

After the police completed a traffic stop of the defendant, the officer asked if he could “check” the defendant’s trunk. The defendant tried to open the trunk from in the car, but had trouble finding the switch. He was ordered out of the car and frisked and the officer then searched the inside of the car and found a weapon. This search exceeded the scope of the consent that was given and the evidence should have been suppressed.

United States v. Zavala, 541 F.3d 562 (5th Cir. 2008)

The police may not flip open and examine a motorist’s cell phone during a Terry stop. A Terry stop permits a brief frisk to ensure officer safety and not an investigation into the contents of a cell phone, including looking for the subscriber number. The government also argued that the search of the cell phone was permissible as a consent search. After removing the defendant’s cell phone from his pocket and putting it on the roof of the car, the agents asked the defendant for consent to search the car. The defendant gave consent. The Fifth Circuit held that this did not give the agents authority to search the cell phone.

United States v. Hardin, 539 F.3d 404 (6th Cir. 2008)

The police wanted to determine if a suspect was located in a particular apartment. They asked a maintenance man to go to the apartment and inform the occupants that he needed to enter to fix a plumbing problem. He did not obtain the occupants’ consent – he simply entered. He then left and told the police that the suspect was there. The Sixth Circuit held that this was not valid consent. First, there was, as a matter of fact, no consent given. Second, the use of a ruse, such as this, is not appropriate, because there was no need to use a ruse to avoid violence or danger. This is not a case in which the police already had probable cause to enter the house and used the ruse for safety purposes. Moreover, the apartment manager was acting as an agent of the police, so it triggered the exclusionary rule.

United States v. Hicks, 539 F.3d 566 (7th Cir. 2008)

The police may not make baseless threats that they will get a search warrant if the occupant of a house does not consent to a search. If, in fact, there is no probable cause to get a warrant (or, more specifically, if the police do not reasonably believe that there is probable cause), this type of threat may vitiate any consent that is obtained in response. A remand to further develop the facts on this point was necessary.

United States v. Castellanos, 518 F.3d 965 (8th Cir. 2008)

The defendant, who was clearly highly intoxicated, arguably permitted the police to enter his residence and sit in the living room. This consent, however, did not authorize the police to then search the entire house, including the defendant’s bedroom.

United States v. Holmes, 505 F.3d 1288 (D.C. Cir. 2007)

The defendant was seen in an alley by the police at 3:40 in the morning and when the officers approached him, he fled, scaling several fences in the process. The officers followed him and when they caught him, he was frisked and a set of car keys were discovered and taken from him. The officers then used the car keys’ remote door opener to find the car. The defendant then gave consent to search the car and a gun was found in the car. The D.C. Circuit held that taking the keys from the defendant after the frisk violated his Fourth Amendment rights. There was no probable cause to seize the keys and the fruit of that unlawful seizure was the discovery, and ultimately the search, of the vehicle in which the gun was found. The government’s argument that the taint of the illegal seizure was purged by the subsequent consent to search was rejected. The attenuation doctrine did not save the search in this case.

United States v. Buckner, 473 F.3d 551 (4th Cir. 2007)

The police went to the defendant’s house and secured his wife’s consent to “mirror image” the computer that was seen on the table in the living room. The wife said that she used the computer occasionally to play solitaire. The agents then used forensic tools to examine the contents of the computer and determined that the defendant had used the computer to engage in various fraudulent acts. The Fourth Circuit held that the consent of the wife was not valid to enable the police to view the password-protected files on the computer, seeTrulock v. Freeh, 275 F.3d 391 (4th Cir. 2001), but that she had apparent authority to grant consent. Thus, the evidence would not be suppressed.

United States v. Lakoskey, 462 F.3d 965 (8th Cir. 2006)

The postal employee brought police officers with him to deliver a package because of his suspicion that the recipient was involved in drug dealing. The package was handed to the defendant at the door. An officer then asked for consent to look in the package, which the defendant adamantly refused. The defendant slammed the security door shut, but the officer continued to ask him to open the package in front of him. The defendant walked away from the door toward the kitchen and the office came in and followed the defendant. This did not amount to consent and the search was illegal, as were all fruits derived from the search.

United States v. Buckingham, 433 F.3d 508 (6th Cir. 2006)

The trial court did not adequately resolve the factual question whether the defendant withdrew his consent to search his car. A defendant has the right to withdraw consent, even after initially giving voluntary consent.

United States v. Gandia, 424 F.3d 255 (2d Cir. 2005)

The defendant consented to the police entering his kitchen to interview him. Prior to commencing the interview, the police conducted a security sweep of the house. This was improper. The consent did not authorize the police to enter other rooms of the house. A security sweep is not permissible on the basis of a limited consent search.

United States v. Sanders, 424 F.3d 768 (8th Cir. 2005)

The defendant consented to the police entering his hotel room. However, when the officers started to frisk him, he resisted, clearly signaling his lack of consent to being personally searched. He was then handcuffed and drugs were found in his pocket. Because he withdrew his consent, the frisk was unlawful.

United States v. Escobar, 389 F.3d 781 (8th Cir. 2004)

The police were suspicious of the defendants’ bags that were in the baggage compartment of a bus. The bags were removed from the compartment and brought to a room where the defendants were being questioned. The officers told the defendants that a drug dog had alerted to the bags and that there was probable cause to search them (there had been no drug dog and there was not probable cause). The defendants then consented to a search. This was not a valid consent search. The environment was overly coercive and the misrepresentation that there was already probable cause to search tainted the voluntariness of the consent.

United States v. Cellitti, 387 F.3d 618 (7th Cir. 2004)

The police entered a house in which the defendant and his girlfriend lived based on exigent circumstances. Once inside, the police were given consent by the girlfriend to look for a gun. While looking for the gun, the police found a set of keys which they ultimately determined fit a car. The girlfriend later consented to a search of the car in which they found an assault rifle. The Seventh Circuit held that the defendant had a legitimate expectation of privacy in the car. Moreover, if the girlfriend did not validly consent to a search of the car, then the defendant had standing to contest the search. The girlfriend’s consent was not valid, because the girlfriend was improperly in custody when her consent to search the car was obtained.

United States v. Richardson, 385 F.3d 625 (6th Cir. 2004)

After issuing the driver a warning ticket, the police asked him to “stay where he was” and then approached one of the passengers (the owner of the car) for consent to search. This direction to the driver amounted to a detention – a detention that had no basis in an articulable suspicion – and amounted to an unlawful stop that tainted any subsequent search, even a consensual search. The detention of the driver amounted to a detention of all the car’s occupants.

United States v. Isiofia, 370 F.3d 226 (2d Cir. 2004)

The defendant was arrested shortly after accepting a controlled delivery of drugs. The police promptly made a protective sweep of the defendant’s home and handcuffed him to a chair. Approximately thirty minutes later, while still handcuffed to the chair, the defendant was asked for consent to search the house, which he granted. The Second Circuit affirmed the lower court’s decision holding that the consent was involuntary due to the prolonged detention in the house. Among the factors considered by the lower court was the agents’ failure to explain what they were looking for; and they were verbally abusive during the course of the detention.

United States v. Guerrero, 374 F.3d 584 (8th Cir. 2004)

The videotape of the defendant’s detention on the side of the road demonstrated that he did not speak English (e.g., Q: “Do you know how fast you were going?” A: “Chicago.”). Evidence of a signed Spanish consent form did not establish the defendant’s consent to search his vehicle. Because the trooper was not able to communicate with the defendant in Spanish (or ensure that the defendant could read Spanish on the form), the form, by itself, was not enough to prove a voluntary consent.

United States v. Bautista, 362 F.3d 584 (9th Cir. 2004)

The defendant checked into a hotel room with what the hotel later learned was a stolen credit card. The management called the police and asked them to investigate, though the hotel had not yet made the decision to evict the defendant. The police went to the door, announced who they were and demanded, “Open the door” and then used a pass key to open it. Inside was the defendant’s wife, who backed up from the door (which she was opening at the same time the pass key was used to unlock it) and she said, “Come in.” They then obtained her consent to search the room and discovered counterfeit paraphernalia. The Ninth Circuit held that the evidence had to be suppressed: First, the defendant had standing, because the hotel had not yet made the determination to evict him and had not terminated his right of occupancy and the police had not yet made the decision to evict him. Both the police and the hotel were still investigating the information relating to the alleged stolen credit card. With regard to the issue of consent, the police officers’ command, “Police, open the door!” negated any suggestion of consent. “The government may not show consent to enter from the defendant’s failure to object to the entry.”

United States v. Hernandez, 279 F.3d 302 (5th Cir. 2002)

Suspicious of a bus traveler, a police officer took her luggage out of the baggage compartment of the bus and handled it, feeling (from the outside) the contents. This violated Bond v. United States, 529 U.S. 334 (2000), which held that such manipulation of luggage amounts to a search. The agent at that point entered the bus and secured the defendant’s consent to open the suitcase. This was voluntary consent. But, the consent was not sufficiently attenuated from the initial illegality to remove the taint. Thus, even though the search was conducted pursuant to the defendant’s consent, it was still the fruit of the illegal search that preceded it. “The officer decided to approach the defendant only after he had felt something suspicious in her suitcase.” This invalidates the consent search.

United States v. Winningham, 140 F.3d 1328 (10th Cir. 1998)

The defendant's was stopped by border patrol agents and told that he was suspected of smuggling aliens. He consented to a search of the van and other than one passenger, nobody was found. The defendant then was told that the agent had information that the defendant was smuggling drugs. The defendant again consented to a search of his van, but it took about five minutes for a drug dog to arrive. The dog jumped into the open door of the van and alerted to the presence of drugs near the rear vent. The defendant did not consent to having the dog enter the vehicle. The trial court suppressed the evidence, concluding that the defendant's consent did not encompass allowing the dog to enter the vehicle. The Court of Appeals affirmed. There was no reasonable suspicion justifying the detention of the driver and the van after the initial search yielded nothing; therefore, the only basis for holding the van for five or six minutes was the driver's consent. The consent that was given, the appellate court concluded, was not voluntary: the driver had been asked to exit the vehicle and stand next to three armed officers. After the initial search ended, the driver was not told that he was free to leave. When the driver started walking away, a law enforcement officer followed him. These factors, taken together, show that any consent given by the driver was not free and voluntary.

United States v. Thame, 846 F.2d 200 (3rd Cir. 1988)

It was improper for the prosecutor to argue that evidence of guilt could be inferred from the defendant’s refusal to consent to the search of his bag.

United States v. Ho, 94 F.3d 932 (5th Cir. 1996)

The defendant was approached at an airport because of his suspicious appearance and itinerary. He initially gave consent to a search of his portfolio. As the officer was looking through the portfolio, he discovered a blank white plastic card. At that point, the defendant abruptly withdrew his consent by grabbing the portfolio back. The officer grabbed the white card and saw a magnetic strip on the back, which indicated that it was a fraudulent card. However, the discovery of the magnetic strip on the back only occurred after the defendant had revoked his consent and thus could not be considered. Prior to noticing the magnetic strip, moreover, there was not probable cause to arrest the defendant and continue the search on a search incident to arrest theory. The district court erred in denying the motion to suppress.

United States v. Hurtado, 905 F.2d 74 (5th Cir. 1990)

Overruling prior precedents, the Fifth Circuit holds that the government needs to prove the defendant’s consent to search by a preponderance of the evidence. Previously, the Fifth Circuit had required the government to prove the voluntary nature of the consent by clear and convincing evidence.

United States v. Jones, 846 F.2d 358 (6th Cir. 1988)

Based on a tip, police approached the defendant on a public street and blocked his car with three police cars. He was asked if he had a gun; he responded that he did not have one with him, but that it was at his house. The court holds that this consent search was invalid: “The overall context and psychological impact of the entire sequence of events, which began with a dramatic stop by three police cars which blocked [the defendant’s] means of egress and then escorted him to the search after he was questioned without the benefit of Miranda warnings” rendered the defendant’s consent to search involuntary.

United States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990)

The police knocked on the defendant’s door; the defendant came to the door, stepped into the hallway and listened while the officers identified themselves. Without a word, the defendant then re-entered the apartment with the police following. This does not constitute consent. At no time did the police ask permission to enter nor did they receive an explicit consensual invitation. Free and voluntary consent cannot be found by a showing of mere acquiescence to a claim of lawful authority. A court will not infer consent to enter a person’s home from conduct. Had the defendants sought permission, and the defendant stepped back into the apartment with the door open, the result might have been different. But here, the police never asked and the defendant never offered his consent. The consent search was not valid.

United States v. Bosse, 898 F.2d 113 (9th Cir. 1990)

An entry gained by use of a ruse that obscures the true reason for entry cannot be upheld despite the defendant’s consent to the entry. In this case, a federal agent hid his true reason for entering the defendant’s house with a California state agent who was reportedly making a state licensing inspection. The state agent told the defendant that he was a licensing inspector and that the federal agent was “with me.” In fact, the federal agent desired entry in the house for purposes totally apart from the licensing inspection.

United States v. $25,000, 853 F.2d 1501 (9th Cir. 1988)

The defendant contended that he did not speak English well enough to consent; there was insufficient evidence to determine if the defendant had freely and voluntarily consented to a search of his bag. A remand was necessary to develop the record.

United States v. Elliott, 107 F.3d 810 (10th Cir. 1997)

After giving the defendant a traffic ticket, the police officer asked the defendant if he could look in the trunk of the vehicle, but stated, “I don’t want to look through each item.” The defendant popped the trunk open and the officer then opened up one bag and looked in. This search exceeded the scope of the defendant’s consent.

United States v. Washington, 151 F.3d 1354 (11th Cir. 1998)

Two federal agents boarded a bus in Jacksonville and, holding their badges above their heads, announced that they would like to see the identification of the passengers. The agents did not tell anyone that they were free to refuse to cooperate, or to refuse to consent to a search. When they approached the defendant, they asked if they could look inside his luggage and then, when the agents saw an unusual bulge in the defendant’s pants, asked if they could search him. Again, he consented. The Eleventh Circuit held that this was not a lawful search, because the consent was not freely and voluntarily given. There is no doubt in this case that the encounter began with a “show of authority,” because the agent held his badge above his head and identified himself as a federal agent. He announced what he wanted the passengers to do, and what he was going to do. Absent some positive indication that they were free not to cooperate, it is doubtful a passenger would think he or she had the choice to ignore the police presence. Most citizens, the court observed, believe that it is their duty to cooperate with the police. Though the court declined to hold that police must advise suspects of their right to refuse to consent to a search, in this context, this is exactly what was needed. As the court held, “It seems obvious to us that if police officers genuinely want to ensure that their encounters with bus passengers remain absolutely voluntary, they can simply say so. Without such notice in this case, we do not feel a reasonable person would have felt able to decline the agents’ requests.”

United States v. Guapi, 144 F.3d 1393 (11th Cir. 1998)

At the bus station in Mobile, Alabama, two officers boarded the bus and announced that “with the passengers’ consent” they were going to quickly search all of the luggage on the bus for contraband. Nobody was told that they could exit the bus with their luggage, or that they were permitted to refuse the request. Though the court stopped short of holding that voluntary consent requires proof that the target was aware of his or her right to refuse consent, in this situation, there was no voluntary consent. The actions of the police, in the language of Florida v. Bostick “would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Note that this decision pre- dates the United States Supreme Court decision in United States v. Drayton, supra which arguably overruled Guapi, though the Supreme Court did not expressly do so.

United States v. Tovar-Rico, 61 F.3d 1529 (11th Cir. 1995)

Several police officers entered defendant’s apartment with guns drawn and immediately engaged in a protective sweep search. The officers then approached the defendant, who was seated at the dining room table and asked for consent to search the house, advising her that if she refused, a search warrant would be obtained. The defendant’s subsequent consent to search was not voluntary.

United States v. Strickland, 902 F.2d 937 (11th Cir. 1990)

The defendant consented to a search of his vehicle, including consent to search the trunk and luggage. This did not, however, include permission to slash his spare tire to investigate its contents. Nevertheless, what the police learned from their lawful search was sufficient to give them probable cause to continue the search and thereby discover the contraband. The Court holds that when a person gives a general statement of consent to search without express limitations, the scope of the search is, nevertheless, not limitless. Rather, it is constrained by the bounds of reasonableness: What police officers can reasonably interpret the defendant’s consent to have encompassed.

United States v. Blake, 888 F.2d 795 (11th Cir. 1989)

The defendant was approached at an airport by three deputy sheriffs. He was asked if he would consent to a search of his baggage and his person for drugs. The defendant consented. Immediately, without any further consent, one of the officers reached into the defendant’s groin region where he did a “frontal touching” “in the area between the legs where the penis would normally be positioned.” The officer felt an object and heard a crinkling sound. The defendant was arrested, advised of his Miranda rights and cocaine was found in the crotch area. The Eleventh Circuit reverses the conviction: The government failed to show that the search which was conducted was within the purview of the consent received. The consent given by the Defendant allowing the officers to search his “person” could not, under the circumstances, be construed as authorization for the officers to touch his genitals in the middle of a public area in the Fort Lauderdale airport. Judge Shoob, concurring, noted that he would have hit the officer if the officer were smaller than him. The court also reviews a number of cases in both the Fifth and Eleventh Circuits which found that consent was not voluntary under certain circumstances.

United States v. Hodge, 19 F.3d 51 (D.C.Cir. 1994)

The defendant was approached by police officers shortly after he departed the bus station. The defendant was with two companions. When the officers began talking to the three suspects, one of the suspects was found to be carrying a firearm; he was thrown up against a tree and ordered to drop the gun. The other suspect was frisked. Meanwhile, the other defendant was asked for permission to search his bags. According to the officer, he consented. The trial court prohibited the defense from questioning the officers about what was going on with the other two suspects during the supposed consent search. This evidence represented the “surrounding circumstances” which must be considered in gauging whether the consent to search was free and voluntary. This limitation was reversible error, even though the defendant himself described the situation during his testimony. The trial court decided that he believed the officers, not the defendant; therefore, the defendant had a right to elicit testimony about the “environment” of the consent search from the officers on cross-examination.