Fourth Amendment:
A. Reasonable Expectation of Privacy
B. Reasonable Suspicion/Vehicle Stops
C. Warrant Exceptions
D.Consent Searches and Seizures
E. Search Warrants
F. Arrest Related Issues
G. Miscellaneous Fourth Amendment
Consent Searches and Seizures
Supreme Court Decisions
• Search - Consent
Georgia v. Randolph, 04-1067 (3/22/06)
> Defendant and his wife were estranged, and his wife had returned
to the residence. The wife summoned the police and advised them that
defendant was a drug user and had drug paraphernalia in the house. The
wife consented to a search, but the husband arrived and objected to the
search. The police conducted the search and found cocaine. The state
charged defendant in a drug case, and defendant moved to suppress the
evidence. The district court denied the motion and defendant appealed.
The Supreme Court eventually granted certiorari.
* Holding: The Court held that police may not rely on consent to search
where one tenant consents to a search, but a co-tenant is present and
objects to the search. Thus, the court held that admission of the
evidence was improper.
Sixth Circuit Decisions
• Seizure - ConsentMyers v. Potter, 04-6022 (9/7/05)
> Myers was a fourteen year old boy whose father was being investigated for a murder. Police questioned him at his home with his mother present, and then persuaded his mother to allow him to go with the police to the station. The police lied to Myers and his mother, saying that they would have him back in an hour. They did not, in fact, return him for several weeks. During the ensuing interrogation, Myers repeatedly requested to leave and/or have his mother present. After Myers’ father was prosecuted for murder, Myers sued the police, under 42 U.S.C. § 1983, based upon an unlawful seizure in violation of his Fourth Amendment rights. The police claimed that Myers and his mother had consented to the seizure. The district court granted summary judgment to the police, and Myers appealed.
* Holding: Police have not conducted a Fourth Amendment seizure if a suspect has voluntarily consented to accompany the officers. In the case, the court held that neither Myers nor his mother could be considered as having given voluntary consent where the police had lied about the purpose and duration of the seizure. Further, the court did not find consent based upon a Miranda waiver signed by Myers. The Miranda waiver dealt only with voluntarily giving a statement, not voluntarily accompanying the police. Further, defendant had asked repeatedly to leave and/or see his mother, all of which were denied. Accordingly, the court found that summary judgment in favor of the officers was not proper, and reversed the district court’s ruling.
• Seizure - Consensual Encounter
U.S. v. Campbell, 06-3321 (5/24/07)
> Defendant parked his car in the parking lot of a closed business and walked across the street to another closed business. An officer observing this conduct approached defendant and asked if he needed help. Defendant responded that he had gotten lost going to pick up his girlfriend and was on his cell phone trying to get directions. The officer got directions for defendant from the dispatcher and then told defendant that he would “like” to get defendant’s ID just to log the encounter. Defendant said he had no ID and then gave the officer a false name and birth date. The officer ran the information through dispatch and found no such person. Defendant subsequently consented to a frisk, then a search of his pockets, which revealed marijuana. The officer arrested defendant and found a gun during the search of defendant’s car. Defendant was charged with being a felon in possession of a firearm and moved to suppress the evidence. The district court granted defendant’s motion and the government appealed.
* Holding: First, the court held that the officer’s first contact with defendant, including the initial request for ID, amounted to a consensual police encounter that did not implicate the Fourth Amendment. Specifically, the court found that the officer’s statement that he would “like” defendant’s ID, just to log the encounter, proved that a reasonable person would have felt free to leave at that time. Second, the ensuing search and arrest was justified because, once the officer determined that defendant had no driver’s license, the officer had probable cause to arrest for defendant’s driving without a license. Thus, the ensuing searches were justified by the search incident to arrest doctrine. Accordingly, the district court ruling suppressing the evidence was reversed.
• Search - Consent
U.S. v. Waller, 04-5204 (10/24/05)
> Defendant stored his personal effects, including two guns, in a closed luggage bag at his friend’s apartment. The friend consented to police officer’s request to search his apartment, during which the officers found and opened defendant’s bag. Defendant was charged with being a felon in possession of a firearm, and challenged the search. The district court held that the search of the bag was justified by the friend’s consent. Defendant appealed.
* Holding: The court held that the friend had neither common nor apparent authority to consent to a search of the bag. Common authority is established by proof that two persons had either mutual use of property, or joint access and control for most purposes. The court found that defendant and the friend had a general understanding that the bag contained defendant’s personal effects and that the friend was not permitted to open it. Thus, the court found no common authority. Apparent authority is established by showing that a reasonable officer would have believed that a person had authority to consent to a search. Because the officers were specifically searching to find defendant’s property and had failed to inquire of the friend as to whether he had common authority over the bag, the court found no apparent authority to authorize the search of the bag. Accordingly, the court found no valid consent for the search, and reversed the district court ruling.
• Search - Consent
U.S. v. Henry, 04-6382 (11/22/05)
> Defendant was on probation in Kentucky and his probation officer conducted a search of his residence. The reason for the search was solely because the officer suspected that defendant did not live there. Defendant’s probationary conditions contained agreements to home visits and to searches if the officer had reason to believe that defendant had “illegal drugs, alcohol, volatile substance, or other contraband on his person or property.” During the search, the officer found ammunition in a duffle bag and defendant was charged with being a felon in possession of ammunition. The district court denied defendant’s motion to suppress and defendant appealed.
* Holding: First, the court held that defendant had not consented to a search of the duffle bag as a result of agreeing to the conditions of his probation. The probationary conditions authorized a search only if the probation officer suspected illegal substances. Thus, defendant had not consented to a search to determine if he lived there. Second, the court found that defendant had not consented to the search by his conduct in permitting the officers into his home to establish whether he lived there. In rejecting the “expressed-object” approach to determining consent in this context, the court relied instead on an objective reasonableness standard. The court held that a reasonable person would not have understood the consent given by defendant to include a general search of the premises. Accordingly, the court ruled that the search of the premises was beyond the scope of defendant’s consent. Notably, the government argued that the case should be remanded for an evidentiary hearing because the district court had not reached the consent issue. The court rejected this request and ruled that defendant had raised the issue of lack of consent in his motion and that the government had failed to meet its burden to prove consent by “clear and positive testimony.” Accordingly, the district court ruling was reversed and the evidence suppressed.
• Search - Consent
U.S. v. Buckingham, 05-5014 (1/11/06)
> Defendant was charged with being a felon in possession of a firearm and moved to suppress evidence found in his car at a traffic stop. Defendant first gave oral consent to search the car, but then refused to sign a written consent form. Upon his refusal to sign, officers requested a drug sniffing dog. Before the arrival of the dog, defendant signed the consent form. The district court denied the motion based upon defendant’s original oral consent, without addressing whether the consent was later withdrawn or whether the written consent was valid. Defendant appealed.
* Holding: Consent once given may be withdrawn by a defendant at any time. In the case, the court found support in the record that defendant had withdrawn his oral consent by failing to sign the written waiver form. Thus, the court found that the district court erred in failing to address the withdrawal of consent issue. The court determined that the appropriate course of action was to remand the case for the district court to consider the withdrawal of consent issue and make appropriate findings. Likewise, the court found support in the record for the argument that defendant’s subsequent written consent may not have been voluntary and unequivocal. Accordingly, the court further instructed the district court to consider the issue and make findings on remand.
• Searches - Consent
U.S. v. Lopez-Medina, 05-5891 (8/25/06)
> Defendant was charged with a drug conspiracy and he filed a motion to suppress, challenging the search of his home. Specifically, he claimed that the consent form he signed contained an error in the translation to Spanish which gave the impression that he had no choice but to consent. The district court denied the motion and defendant appealed.
* Holding: The court held that the consent form, taken in its totality, accurately conveyed to defendant that the agents were requesting his consent and that he had a right to refuse. Additionally, the court agreed with the district court that defendant’s claim that he did not understand English was not credible. Accordingly, the court found defendant’s consent to be valid.
• Search - Consent - Apparent Authority
U.S. v. Morgan, 04-5283 (1/26/06)
> Defendant’s wife became suspicious that he was viewing child pornography and installed spy ware on their home computer. She then notified the police about her suspicions. When the police arrived, she advised the officers that she and her husband both had access to the computer, that she occasionally used it, and that she had captured child pornography images on the spy ware. The police searched the hard drive, found images of children, and defendant was charged with possession of child pornography. Defendant moved to suppress the evidence found on the computer and the district court denied the motion, finding consent for the search. Defendant appealed.
* Holding: Police may rely on third-party consent for a search if they rely in good faith on the third party’s apparent authority to consent to a search. Apparent authority is judged by an objective standard, considering only whether the officers could reasonably conclude that the third party had authority to give consent. In the case, the court found that the computer was in a common area, that the wife said that she had access to the computer, and that she had installed spy ware. Under these circumstances, the court found apparent authority. The court noted that the apparent authority was not dissipated by the fact that there was another computer in the house (a fact not disclosed to the police) or that defendant had installed an eraser program in the computer. Accordingly, the district court order was affirmed.
• Search - Consent
U.S. v. Ayoub, 06-1610 (8/16/07)
> Agents received a tip from defendant’s half brother that defendant was engaged in drug trafficking out of his parents’ home while they were away. Agents conducted surveillance on the home, and eventually stopped defendant in his vehicle while leaving the home. The agents found nothing in a search of defendant and the vehicle, and they let him go. The agents were told by the half brother that defendant’s half sister was the caretaker of the parents’ home while they were gone, and that the half sister had a key. The agents went to the half sister’s home, obtained her consent to search the parents’ home, and got the key. Agents found evidence of drug trafficking and a firearm. Defendant was subsequently indicted and moved to suppress the evidence found in the consent search. The district court denied the motion and defendant appealed.
* Holding: Common authority to consent to a search rests on mutual use of property by persons having joint access or control for most purposes. Even if a third party does not have actual common authority to consent to a search, the search may be still justified if the officers reasonably believed that the person had apparent authority. In the case, the court held that the half sister had common authority to consent to a search of the parents’ home because (1) the half brother said she did, (2) the half sister herself said that she did, and (3) she had a key. The court nonetheless expressed concern that defendant appeared to have a greater possessory interest in the home than the half sister, and the officer did not ever request defendant’s consent to search the home, going instead to the half sister. Relying on the recent Supreme Court case Georgia v. Randolph (See, P.V., Issue # ___), the court held that because defendant had not actually denied a request to search, and the agents did not “remove” defendant from the home to “avoid his possible objection,” the half sister’s consent was sufficient. Accordingly, the district court ruling was affirmed.
• Search - Consent - Common Authority
U.S. v. Caldwell, 06-5640 (2/26/08)
> Defendant and his girlfriend checked into hotel room and both were listed as guests. Upon smelling marijuana emanating from the room, the manager called the police, who determined that defendant had an open felony warrant. Officers arrived and defendant was arrested. According to the officers, the girlfriend consented to a search of the room while defendant said nothing. Upon defendant’s subsequent prosecution for the narcotics found in the room, he moved to suppress the evidence. The district court denied the motion based upon the girlfriend’s consent and defendant appealed.
* Holding: The court held that the girlfriend had common authority over the hotel room even though it was not clear that she had a key in her possession. She checked in with defendant, had luggage in the room, and intended to stay the night. Further, the court found no error in the search of two “containers” in the room, namely a paper bag and a partially unzipped C.D. case. Defendant disavowed ownership of anything in the hotel room and the girlfriend gave clear consent to search anything of hers in the room. Thus, the search of the containers was reasonable. Accordingly, the district court ruling was affirmed.
• Search - Consent - Voluntariness
U.S. v. Moon, 06-5581 (1/16/08)
> Defendant was a doctor who was being investigated by agents for health care fraud. The agents went to the doctor’s office and requested to review certain medical records for the purpose of their investigation. Defendant indicated that it would be “fine” and that the agents “could scan whatever they need to.” Defendant further indicated that she would need to continue to see patients while the agents conducted their review. Defendant was subsequently prosecuted for health care fraud and she moved to suppress the records obtained by the agents. The district court denied the motion and defendant appealed.
* Holding: The government bears the burden of proving the voluntariness of a defendant’s consent to a search by “clear and positive testimony.” Consent is voluntary when it is “unequivocal, specific and intelligently given, uncontaminated by any duress or coercion.” In the case, the court held that defendant’s consent was voluntary, and was not a mere expression of futility to the authority of the agents. Specifically, the court found that the agents did not misrepresent that they had a warrant, and defendant’s statements clearly reflected that she did not feel powerless to prohibit the search. Accordingly, the district court ruling was affirmed.
• Consent Searches
U.S. v. Purcell, 07-5517 (5/29/08)
> Officers found defendant and his girlfriend in a hotel room. Defendant was arrested because he was an a prison escapee. Defendant’s girlfriend claimed that the two bags in the hotel room were hers, said that there was a gun in one of them, and she consented to their search. Upon opening the first bag, however, officers found only men’s clothing, marijuana, and no personal effects of the girlfriend. The officers proceeded to search the second bag, and found a gun. Upon defendant’s prosecution, he moved to suppress the firearm. The district court granted the motion and the government appealed.
* Holding: Third party consent to search property may be based on actual or apparent authority. Actual authority is based on mutual use of the property by persons having joint access or control. Apparent authority derives from an officer’s objective belief that the consenting party has the apparent right to consent to the search. In the case, the court held that the undisputed evidence adduced at the suppression hearing indicated that the girlfriend had no actual authority over defendant’s bag. Further, the court held that, although the officers obtained the girlfriend’s apparent authority to search the first bag, they were on notice after searching it that the girlfriend’s authority to consent was in question. When the officers found only men’s clothing in the first bag, it created ambiguity that needed to be resolved before proceeding to search the second bag. The officers did not ask the girlfriend, who was present, any further questions to try to resolve the ambiguity before conducting the subsequent search. Further, the girlfriend’s apparent “intimate relationship” with defendant was not sufficient to provide the necessary apparent authority. Accordingly, apparent authority did not support the search of the second bag, wherein the gun was found, and the district court ruling was thus affirmed.
• Consent Search - Damage to Vehicle
U.S. v. Gonzalez, 05-4230 (1/9/08)
> Defendant was stopped for a traffic infraction and consented to a search of the vehicle. During the search, the officer noticed a piece of molding that was out of place. When the officer touched the molding, it fell off and revealed a hole. The officer looked through the hole and noticed bags of cocaine. Defendant was arrested and the officer obtained a search warrant for the car. In defendant’s subsequent drug prosecution, he moved to suppress the drug evidence, and the district court denied the motion. Defendant appealed.
* Holding: Generally, a consent to search is not reasonably understood to confer permission to damage the vehicle in conducting the search. The court held, however, that the officer did not damage the vehicle by making the “slightest exploratory touch” of the molding. Thus, the search was reasonable based on defendant’s consent and the subsequently obtained warrant. Accordingly, the district court ruling was affirmed.
• Consent Search
U.S. v. Hardin, 06-6277 (8/25/08)
> Officers had an arrest warrant for defendant and received a tip that he was in a certain apartment. The officers approached the landlord of the apartment, advised him of the situation, and requested that the landlord enter the apartment on the ruse of a water leak. The landlord went to the apartment and requested to enter to check on the water leak. Defendant was present and agreed to the landlord entering. Based on information provided by the landlord, officers then entered the apartment, arrested defendant, and found crack and firearms. Defendant was prosecuted and he moved to suppress the evidence. The district court denied the motion and defendant appealed.
* Holding: The court first held that the landlord was acting as an agent of the officers by going to the apartment. (See infra). Second, the court ruled that any consent obtained by the landlord was based upon a ruse regarding the non-existent water leak. Under these circumstances, the court ruled that defendant felt he had no choice but to let the landlord in. Accordingly, the court held that the consent was invalid.
• Consent Searches - Scope of Consent
U.S. v. Canipe, 08-5534 (6/30/09)
> Defendant was stopped by an officer for a traffic violation and at the conclusion of the stop the officer asked defendant if he had anything illegal and requested to “look in” his truck. Defendant stated that he did not think that he had anything illegal and stated that looking in his truck was not a problem. As officers searched defendant’s truck, he lodged no objection. Officers found a gun in an unlocked box that said “Ruger” on the top. Defendant was prosecuted for being a felon in possession of a firearm and moved to suppress the evidence. The district court denied the motion, finding that defendant consented to the search, and defendant appealed.
* Holding: The court held that the government must prove that a defendant’s consent was voluntary, unequivocal, specific, and intelligently given by “clear and positive testimony.” In making this assessment, the court may consider the accused’s characteristics and the details of the interrogation. The court found that defendant’s consent was not “mere acquiescence” to police authority, but was instead a knowing, voluntary consent by a defendant who was “no stranger to the police or the criminal justice system.” Although the court noted that the officer agreed in testimony that defendant “acquiesced,” the court agreed with the district court that defense counsel’s questioning on this point was a “semantic trap.”
Additionally, the court held that the opening of the closed box by the officer did not exceed the permissible scope of the search. The court ruled that a general consent to search a vehicle ordinarily encompassing the opening of closed, but unlocked, containers within the vehicle. Accordingly, the district court’s ruling was affirmed.
• Consent Search - Apparent Authority
U.S. v. Penney, 05-6821 (8/7/09)
> Defendant and his girlfriend were in an on-and-off relationship over the course of several years. Officers knew that, when they had fights, defendant would kick his girlfriend out and she would live with her mother. They would always quickly reconcile, and she would return to the residence. On a certain date, the girlfriend showed up at the police station and indicated that defendant had assaulted her and ordered her out of the house, and she wanted to file a complaint. Defendant arrived at the station shortly thereafter, he advised the officers that he wanted her out of the house, and he was arrested for assault. The girlfriend then told officers that defendant had drugs and guns in the house and she consented to a search. Upon arrival, officers found that her car was there along with many of her personal items. Officers searched and discovered guns and narcotics. In defendant’s subsequent prosecution, he moved to suppress the evidence and the district court denied the motion. Defendant appealed.
* Holding: The court held that the girlfriend had apparent authority to consent to the search. Although both she and defendant indicated that she had been kicked out of the house, the court found that their long history suggested that she possessed authority over the premises. This was confirmed by the fact that the girlfriend’s car and personal possessions were at the residence. Accordingly, the district court’s ruling was affirmed.