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.