20 February 2005

A New Twist for Consensual Searches

In United States v. Smith, decided just last month, the Fourth Circuit has taken the rule regarding consensual searches to a new level. It was late at night when Smith became lost driving near CIA headquarters. He stopped for directions at a callbox at the access road to the main gate for the headquarters. An officer directed him to a barrier closer to a gate. Smith was then surrounded by officers, one of whom was pointing a shotgun at his car (the officers could not agree as to whether it was pointing directly at Smith at the time). The 4th Circuit Court of Appeals held that it did not matter whether the officers had reasonable suspicion to make a seizure. In fact, the 4th Circuit held that the Fourth Amendment did not apply, since the encounter was consensual.

Under United States v. Mendenhall, the Supreme Court has stated that to determine if a seizure has occurred, the court should apply an objective standard on whether the reasonably prudent person would feel free to leave. Smith makes a good argument that he was not free to leave when he was surrounded by officers with guns drawn. The 4th Circuit states that it does not matter whether Smith felt free to leave since he drove up to the barrier voluntarily and since the officers had a reasonable belief that the encounter was consensual.

First, although Smith may have driven up to the barrier voluntarily initially, he did so to get directions not to be threatened with firearms. Additionally, the Supreme Court has held numerous times, that what may be initially a consensual encounter may turn into a seizure when the reasonably prudent person no longer feels free to leave. See Terry v. Ohio.

Second, the Supreme Court has held under Mendenhall, that the court looks at whether a reasonably prudent person in the same circumstances as Smith would have felt free to leave. The 4th Circuit disregards this test, and looks only to whether a reasonably prudent law enforcement officer thought that the individual was consenting to the seizure.

Finally, the 4th Circuit held that a reasonable prudent person would consent to having guns drawn on them and a search of their automobile since they knew that they were approaching CIA headquarters. This may be true under circumstances other then those in this case. The officer that directed Smith to the barrier did not mention anything about a search of his car, or to expect that he would have weapons pointed at him. Additionally, there were no signs signaling to members of the public that by driving on the access road, they were consenting to any types of searches, seizures, or should expect to be stopped.


moi said...

Wow. But is anyone surprised?

KipEsquire said...

If the test for waiving a right is that the waiver must be "knowing and voluntary," then shouldn't the same or a similar test be used for consent? Would the driver have have proceeded to the barrier had he known what would happen to him?

Yasmeen Abdullah said...

It would be logical to use the test of "knowing and volutary" for whether there was a consent to a search. However, the Supreme Court came up with a new test that applies only to consent for Fourth Amendment rights. Waiving your Fourth Amendment rights by consenting to a search or seizure only requires voluntariness. It does not have to be a "knowing" waiver. Thus, the police do not have to give a warning to an individual that they have a right not to consent to the search.

Yasmeen Abdullah said...

The Supreme Court case that came up with this separate standard was Schneckloth v. Bustamonte. However, you are right that the waiver of other constitutional rights must be knowing and voluntary. The dissent in Schneckloth argues that by making this separate and lower standard searches and seizures, the Court is making the Fourth Amendment second class to other constitutional rights.

Anonymous said...

Whether one is aware of the right to withold consent is in fact a consideration in assessing voluntariness. Obviously, not knowing you can withold consent, if such is the case, would vitiate "voluntariness." In other words, to require a knowing consent would be redundant. If you don't know (at least inferentially) that you can refuse consent, you cannot be consenting.