Search and Seizure - Consent -- Product of Unlawful Detention, Entry or Arrest

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

Police may board a bus and ask passengers for 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.

United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011)

The defendant was walking on the sidewalk in a “high crime area” when the police approached. The defendant was ordered to approach the officer, which he did. The defendant appeared to be nervous. The officer then frisked the defendant to look for weapons. The officer then asked for consent to conduct a search of the defendant’s person and the defendant agreed. The officer found drugs inside the defendant’s boxers. The Sixth Circuit held that this was an seizure, it was not based on an articulable suspicion and the consent was tainted by the illegal detention.

United States v. Macias, 658 F.3d 509 (5th Cir. 2011)

The duration of the traffic stop in this case lasted too long to be justified as a legitimate motor vehicle stop. The state trooper pulled the defendant over because he was not wearing a seat belt. He determined that the defendant did not have proof of insurance. The trooper then questioned the defendant at length about his work history, his itinerary, his purpose for traveling and his health. The defendant’s consent to search the vehicle was the product of the illegal detention.

United States v. Fox, 600 F.3d 1253 (10th Cir. 2010)

The defendant’s wife pulled up to her house and was approached by a police officer who was conducting surveillance of the house (in particular, the defendant). The officer entered the wife’s car and directed her to drive across the street to a partking lot. She was questioned and then asked for consent to search her car. Ultimately, she consented to a search of the house. The Tenth Circuit held that the wife was detained; there was no basis for the detention and the consent to search was the product of this detention. In analyzing the Wong Sun and Brown v. Illinois factors (i.e., whether the illegal detention had dissipated) the court stressed that the officer’s conduct was flagrant and the misconduct was investigatory in design and purpose and was executed “in the hope that something might turn up.” The gun found in the house, therefore, should have been suppressed at the defendant’s trial.

United States v. Alvarez-Manzo, 570 F.3d 1070 (8th Cir. 2009)

The police seized a suitcase from underneath an interstate bus during a layover at a bus depot. They brought the suitcase into the bus and asked the passengers to whom it belonged. The defendant eventually said that it was his. He agreed to exit the bus and went with an officer into the bus station. Ultimately, he was arrested based on what was seen in his wallet and a search warrant was obtained to search the bag. The police did not act with the consent or at the direction of any employee of the bus company when they initially took the bag out cabbage compartment and brought it into the bus. This amounted to a seizure and because there was no warrant or probable cause, evidence discovered as a result of the seizure – which was both the contents of the wallet (viewed with the defendant’s consent) and the suitcase – was properly suppressed.

United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008)

After pulling the defendant over for improper registration and weaving, the trooper determined that the defendant had a Mexican driver’s license which the trooper incorrectly believed did not authorize the defendant to drive in Tennessee. The trooper wrote a ticket for the registration violation, but prolonged the traffic stop based on his erroneous belief that the license was insufficient (and because of his suspicion that the defendant was smuggling drugs). Eventually (twenty-four minutes after the stop commenced), the trooper asked for consent to search the car, which the defendant provided. The Sixth Circuit held that the stop lasted too long, based on the trooper’s erroneous understanding of the law and the consent was tainted by the prolonged detention. The court also rejected the government’s suggestion that the trooper had a reasonable basis for believing that the defendant was smuggling drugs. The “characteristics” upon which the government relied were not sufficient to amount to a reasonable articulable suspicion. Finally, the court held that even if there was reasonable suspicion to believe that the defendant was in the country without proper documents, the trooper lacked the authority to investigate this matter.

United States v. Gomez-Moreno, 479 F.3d 350 (5th Cir. 2007)

After the police made an unlawful “exigent circumstances” search of the defendant’s house (see annotation for this case infra Search and Seizure (Exigent Circumstances)), the defendant consented to a search of the house. The Fifth Circuit held that the consent was the product of the prior illegal search.

United States v. Johnson, 427 F.3d 1053 (7th Cir. 2005)

The police received an anonymous tip that the defendant was a cocaine dealer and that he lived at a particular location. The police went to the defendant’s house and when the defendant’s girlfriend came out, she was asked by the police to knock on the door. She did so and the defendant came to the door. The police talked to him briefly, after which he turned around and started walking away, back down the hall. The police pulled out a gun, pointed it at the ground, and cautioned that “this was a matter of officer safety.” The defendant stopped in his tracks and returned to the door. He then consented to a search. The Seventh Circuit held, (1) this did amount to a detention; (2) there was no articulable suspicion supporting the detention; (3) the consent to search was a fruit of the unlawful detention.

United States v. Washington, 387 F.3d 1060 (9th Cir. 2004)

The police went to the defendant’s residential hotel room and knocked, with the expectation of gaining the defendant’s consent to search the premises. But the defendant stepped outside the door when the police knocked and closed the door behind him. The police (six of them) repeatedly asked for permission to go in the apartment and reminded the defendant that he could be arrested on an unrelated matter. Eventually, the officers made their way inside and ultimately convinced the defendant to consent to a search. The Ninth Circuit found these Fourth Amendment violations: First the officers exceeded a Terry stop in the hallway; then they violated the defendant’s rights by not allowing the door to remain closed; then they violated his rights by entering the apartment without his consent; and finally, they violated his rights by moving his jacket to find a small amount of methamphetamine. His subsequent consent to search was tainted by all of these previous violations.

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. Fields, 371 F.3d 910 (7th Cir. 2004)

Consent to search a house that occurs after the police unlawfully enter the house may be tainted by the illegal entry if that illegality has not been sufficiently attenuated. The lower court’s findings in this case were insufficient to determine if, in fact, the court found that the initial entry was legal or not.

United States v. Robeles-Ortega, 348 F.3d 679 (7th Cir. 2003)

The police sent an informant into a house to buy cocaine. The informant came out and advised the DEA that the cocaine was in the house. The agents did not attempt to get a search warrant, but, instead, broke down the door with guns drawn. A security sweep of the apartment was conducted and then one of the tenants was asked to consent to a search, which she did. The Seventh Circuit holds that the consent was tainted by the unlawful entry.

United States v. Chanthaxouxat, 342 F.3d 1271 (11th Cir. 2003)

The police pulled over the defendant’s car because the officer believed that the defendant was in violation of a municipal law that required an inside rear view mirror. Actually, there was no such law. This rendered the stop illegal and the officer’s good faith did not rescue the government. An officer’s good faith mistake of fact may support a stop, but a mistake regarding the law cannot support an illegal stop and the evidence derived from the stop must be suppressed.

United States v. Patzer, 277 F.3d 1080 (9th Cir. 2002)

The police lacked probable cause to arrest the defendant for DUI. The officer may have believed that the defendant had ingested marijuana, but there was no information suggesting that this impaired his ability to drive which is an element of the DUI offense. Absent probable cause to arrest the defendant, the ensuing search of his automobile could not be justified as a search incident to arrest. Similarly, the defendant’s consent was tainted by the unlawful arrest. Finally, the court suppressed the statements made by the defendant that were the product of the illegal arrest.

United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997)

An officer observed the defendant's pickup truck and was suspicious, though there was no motor vehicle offense observed, or anything particular about the pickup that the officer could identify as being suspicious. The pickup pulled over to the side of the road and the driver raised its hood. The officer pulled in behind and asked the driver for his license and registration. Then, without returning the papers (and without having ever asked if the defendant was having trouble with the vehicle), the officer, hand on his weapon, asked if he could look in the vehicle. The driver consented. This was an unlawful detention. Withholding the papers in this situation prevented the defendant from freely refusing consent and the consent that was given, therefore, was ineffective.

United States v. Ivy, 165 F.3d 397 (6th Cir. 1998)

The police knocked on the defendant’s door looking for a fugitive. The defendant consented to the officers’ entry into the house. The court found that the subsequent search, however, was the product of police coercion and that the defendant did not consent to the search. Among other things, the defendant was detained for over an hour prior to the time that he supposedly consented to a search of his house. The officers also threatened to arrest everybody in the house and put the children in protective custody, and the defendant’s girlfriend was handcuffed to a kitchen table.

United States v. Vega, 221 F.3d 789 (5th Cir. 2000)

The police knocked on the door of a house that they suspected was being used for drug dealing. One person fled out the back door and was then detained. There was no probable cause for his arrest, however. Though he was not the owner or lessee of the house, he consented to a search of the house. The police, arguably, could have believed that he had authority to consent. However, because he was unlawfully detained, the consent was invalid and the defendant who did have standing to contest the search of the house could assert that fourth amendment violation to contest the supposed consent search of the house.

United States v. McCraw, 920 F.2d 224 (4th Cir. 1990)

The police went to the defendant’s hotel room after arresting a person who had just exited the room with cocaine. The officers knocked on the door; the defendant opened the door, but upon seeing the police, he immediately tried to close the door. The police forced their way in. The defendant was arrested and asked if the officers could search the room. Defendant consented. The entry into the room was unlawful and the ensuing purported consent was invalid. The entry was not in hot pursuit and was not justified by exigent circumstances. This case is distinguishable from United States v. Santana, 427 U.S. 38 (1976), because there, when the police arrived, the defendant was in the doorway and quickly retreated upon seeing the police.

United States v. Miller, 146 F.3d 274 (5th Cir. 1998)

The police believed that the defendant was transporting drugs, but had no basis for stopping the vehicle other than the fact that the defendant activated his direction signal, but then entered an intersection and did not make a turn. Flashing a turn signal, but not turning, however, is not a criminal offense under Texas law, so stopping the vehicle was not authorized. The defendant’s subsequent consent to a search of his vehicle was tainted by this unlawful stop and was not valid.

United States v. Caicedo, 85 F.3d 1184 (6th Cir. 1996)

The defendant arrived at the bus station in Cincinnati and a narcotics officer testified that he looked nervous. The officer followed the defendant until he got into the car of another person. The officer approached the car and asked the two if he could talk to them. The defendant (the passenger) got out of the car and – though the evidence was unclear, the appellate court concluded – the officer then frisked him and then asked for consent to search his backpack. The appellate court held that the evidence should have been suppressed. If the frisk occurred before the request for consent, then the defendant was at that time “seized” and there was no basis for this seizure. The ensuing consent, therefore, was invalid and the search of the backpack violated his Fourth Amendment rights.

United States v. Richardson, 949 F.2d 851 (6th Cir. 1991)

The police approached the defendant who was standing outside a storage unit which the police believed contained contraband. They asked for his consent to search the unit; the defendant refused. He was placed in the back of the patrol car and told to wait there while the officers questioned defendant’s colleague. This amounted to an arrest of the defendant and his subsequent consent to search the storage unit was tainted by this unlawful arrest. In light of the statements of the officers and the circumstances, this was more than a mere Terry stop.

United States v. Bradley, 922 F.2d 1290 (6th Cir. 1991)

The grand jury returned an indictment against the defendant. The police went to the defendant’s house before a warrant was signed or a summons issued. The police knocked on the door; the defendant answered and was told he was under arrest. He consented to a search of his house. This violated Payton and the consent was tainted by the unlawful arrest. (The decision does not indicate that the officers entered the house prior to informing the defendant that he was under arrest).

United States v. Buchanan, 904 F.2d 349 (6th Cir. 1990)

The police lacked sufficient basis to enter the defendant’s home without a search warrant solely on their belief that the defendant’s wife would destroy evidence after the defendant was arrested by DEA agents. Because the police were aware that the defendant’s wife was at home asleep, there was no reason to believe that she would be aware that the defendant had been arrested and thus there was time to get a search warrant. Furthermore, once the police entered the house without a search warrant, the subsequent consent of the defendant (even assuming he was lawfully arrested) was tainted by this unlawful entry and the police could not rely on a consent search. Finally, the government cannot rely on the “inevitable discovery” exception because the police were not pursuing an alternate line of investigation at the time that the search was conducted. Police who believe they have probable cause to search may not enter the premises and excuse their failure to get a warrant on the basis that they would have gotten one anyway.

United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)

The police decided to investigate the occupants of a hotel room in Milwaukee on the basis that the car being driven by them had out-of-state plates (Florida plates) and the car was a two-door vehicle. They also learned that the driver had previously been arrested on narcotics charges. At about 11:00 p.m., the officers knocked on the door of the room for several minutes and hearing no reply, then went outside and started knocking on the window. After several minutes, the defendant opened the door and eventually consented to a search of the room. The Seventh Circuit concluded that the knocking on the door and window late at night amounted to a seizure that had no valid basis. The consent was tainted by this unlawful detention.

United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997)

The police pulled behind the defendant’s vehicle which was disabled on the side of the road. The officer obtained the defendant’s license and registration and found everything in order. Without returning the identification documents back to the defendant, however (and while keeping his hand on his holstered weapon), the officer then asked for consent to search the vehicle. Retaining the documents amounted to a seizure, which was not supported by an articulable suspicion. A subsequent consent to search was not valid: the defendant was not told that he could refuse consent, he was not Mirandized and he was being unlawfully detained.

United States v. Gregory, 79 F.3d 973 (10th Cir. 1996)

The defendant was driving on I-70 in Utah when he was observed by a trooper weaving over the shoulder line. The defendant was stopped and following a brief encounter, consented to a search of his vehicle. The trooper’s stop of the vehicle was not lawful. Weaving over the shoulder line one time is not an offense under Utah law and there was insufficient evidence that the defendant was DUI or was a danger to the public. In this case, moreover, the ensuing consent was not untainted by the illegal stop. The court concluded that it was evident that, from the moment the vehicle was stopped, the trooper’s sole interest was in viewing the contents of the vehicle.

United States v. Sandoval, 29 F.3d 537 (10th Cir. 1994)

The defendant was stopped for speeding. He produced his license and registration, which was checked and came back normal. After returning the paperwork to the defendant, the defendant asked if “that is it?” to which the officer responded, “No, wait a minute.” The officer decided to ask the defendant some additional questions about his criminal background (he learned during the license check about an arrest for a narcotics violation several years earlier). This questioning amounted to an additional detention, which was not supported by an articulable suspicion. The fact that the defendant had an earlier arrest – and no conviction – for a drug offense, does not justify a Terry stop of any duration. Even though the defendant then gave consent to search the car, this consent occurred after the detention had become unlawful and it was, therefore, not a free and voluntary consent. The evidence should have been suppressed.

United States v. Fernandez, 18 F.3d 874 (10th Cir. 1994)

The defendant was stopped on the interstate, because the trooper considered the tinted windows to be in violation of state law and for improper lane travel. The trooper examined the driver’s license and issued a citation. However, rather than allowing the defendant to proceed, the trooper held the identification and questioned the driver and then asked for consent to search the car. The search yielded 121 kilograms of cocaine. The Tenth Circuit concluded that there were insufficient facts to support the detention of the defendant beyond the time necessary to examine the license and issue the citation (i.e., nervousness and “unusual behavior”). The subsequent consent to search the vehicle was tainted by the unlawful detention. Among other factors considered in determining whether the consent was free and voluntary was the trooper’s failure to advise the defendant that he had the right to refuse. This case might not be decided the same after the Supreme Court decided Ohio v. Robinette, 519 U.S. 33 (1996).

United States v. Walker, 941 F.2d 1086, on rehearing from 933 F.2d 812 (10th Cir. 1991)

The defendant was stopped for speeding. The officer then began questioning the defendant about contraband. While holding the defendant’s license and registration in his hand, the officer then asked for permission to search the car. Though the defendant consented, the search was invalid. The continued detention of the defendant beyond the time necessary to issue the speeding ticket was not based on any articulable suspicion and the only issue for remand was whether the consent was invalid in light of the illegal detention.

United States v. Maez, 872 F.2d 1444 (10th Cir. 1989)

The defendant’s house was surrounded by SWAT team members all with drawn guns. With the use of loud speakers, the officers ordered the defendant to exit his home. Because the officers had neither an arrest warrant nor a search warrant, the arrest was illegal pursuant to Payton v. New York. The resulting searches which were undertaken with the consent of the defendants were tainted by the illegal arrest. Statements given by the defendants were also subject to suppression.

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.