||“Free and Voluntary consent” to search residence by suspect under arrest

“Free and Voluntary consent” to search residence by suspect under arrest

E-Newsletter Edition: May 13, 2009

Response Provided By: Brian S. Batterton, J.D.

Always note that state law may be more restrictive on police power than the U.S. Constitution.

QUESTION:

An officer makes a traffic stop and discovers a handgun.  A criminal history check is performed on the driver.  The officer learns that the driver is a convicted felon.  The officer arrests the driver for possession of a firearm by a convicted felon.  The officer believes that additional guns may be at the residence but does not have probable cause to obtain a search warrant.  Can the officer obtain consent to search the driver’s residence even though the driver is under arrest?

_____

ANSWER:

A person who is in custody can give valid consent, as long as the consent is “free and voluntary.”

On March 30, 2009, the Sixth Circuit Court of Appeals decided U.S. v. Youngi, which involved just such an issue.  The case began on March 8, 2006 when ATF agents, summoned Charles Young to the local sheriff’s department under a ruse to facilitate the execution of an arrest warrant for Young.  Young arrived with his wife and daughter.  Deputies greeted Young and escorted him to a back room away from his wife and daughter.  There, three ATF agents identified themselves, placed him under arrest, and secured him.  The told him that they had a warrant for him for “felon in possession of a firearm.”ii  The agents read Young Miranda.  Young then asserted immediately and repeatedly that he was not a drug dealer.  The agents asked Young for consent to search his house for drugs and he verbally consented to a search of his residence.  The agents also asked him if he had any additional firearms on his property and he told them he had a gun in the truck on his property.  He also gave them consent to retrieve this gun.

At this point, the agent told Young that they were going to take him to his house to retrieve his prescription medication and the gun in his truck.  Young was then presented with a “consent to search form” and he signed the form.  The entire encounter with Young at the sheriff’s department lasted approximately thirty minutes.

Young was transported to his residence where agents retrieved the gun from the truck.  The house was searched and no drugs were found.  However, the agents did find ammunition, which is illegal for a convicted felon to possess under federal law.iii

Young was subsequently charged with possession of a firearm by a convicted felon and possession of ammunition by a convicted felon.  He was indicted and plead guilty, with the right to appeal the denial of his motion to suppress.

Young appealed the denial of is motion to suppress to the Sixth Circuit Court of Appeals.  On appeal, Young argued that his consent was not free and voluntary because (1) he was upset at the time, (2) he had not recollection of his Miranda warnings, or giving consent, (3) he had a limited 9th grade education, and (4) he had a medical condition that makes him forgetful and confused.

The Sixth Circuit Court of Appeals noted the following six rules regarding consent searches.

    1. It is well established that a person can chose to waive his or her Fourth Amendment rights.iv
    1. Consent “may be in the form of words, gesture, or conduct.”v
    1. In whatever form consent may be given, the consent is only valid if it is given freely and voluntarily.vi
    1. “Whether a consent to search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances.”vii
    1. When determining whether the consent was voluntary or rather the product of coercion, the “Court should consider the circumstances surrounding the search for more subtle forms of coercion that might flaw an individual’s judgment.viii
  1. When determining if consent is valid, the court should consider the following factors:
    • Age,
    • Intelligence,
    • Education of the individual,
    • Whether the individual understands his or her constitutional rights,
    • The length and circumstances surrounding the detention, and
    • The use of coercive or punishing conduct by the police.ix

The Sixth Circuit Court of Appeals then applied the facts of Young’s case to the above rules.  First, there was testimony by two ATF agents and an investigator that Young verbally consent and then signed the consent form.  Even though Young says he does not remember either consent, he does admit that his signature is on the consent to search form.  Next, all parties, including Young, state that the circumstances surrounding his arrest were non-confrontational, and that he was treated fairly.  The court found that even though Young may have been upset, this does not rise to the level of duress.  Further, although Young cites his limited formal education, he had previous encounters with law enforcement which indicated that he was aware of his Constitutional rights.x  Lastly, Young argued that he merely acquiesced or gave into the agent’s authority while at the sheriff’s department.  Although mere acquiescence does not amount to free and voluntary consent, there was not evidence to indicate that Young’s consent was “an expression of futility in resistance to authority.”xi

In light of the above rationale, the Court of Appeals found that Young’s consent was free and voluntary and affirmed the denial of his motion to suppress.

CITATIONS:

i No. 07-6066, 2009 U.S. App. LEXIS 6643 (6th Cir. 2009)

ii See 18 U.S.C. § 922(g)

iii Id.

iv Young, 07-6066 at 6 (citing Davis v. United States, 328 U.S. 582, 593-94 (1946))

v Id.(quoting United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976))

vi Id.(citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968))

vii Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973))

viii Id. (citing United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998); United States v. Watson, 423 U.S. 411, 424 (1976))

ix Id.at 7 (citing United States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002)

x See Elkins, 300 F.3d at 638, n.7

xi Young at 8 (quoting United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999))

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