On December 22, 2021, the Seventh Circuit Court of Appeals decided the United States v. Ahamd[i], which is instructive regarding whether the retention of a driver’s license and other vehicle documents will render a consent to search a vehicle involuntary and result in the suppression of evidence. The relevant facts of Ahmad are as follows:
On December 31, 2017, Deputy Derek Suttles of the Morgan County Sheriff’s Office was conducting drug interdiction on the interstate near South Jacksonville, Illinois. He saw an RV with a dirty Idaho license plate traveling on Interstate 72 and followed it so he could read the plate. Ahmad was driving the RV. His two children and his cousin Muhammad Usama were passengers.
Ahmad exited the interstate and pulled into a Love’s Truck Stop. He and Usama left the RV and went into the convenience store. Deputy Suttles parked nearby and entered the store to use the bathroom. He saw Ahmad and Usama but did not approach them. He returned to his squad car, ran the RV’s license plate, and learned that it was registered to an elderly couple from Idaho. A store employee then approached Suttles and informed him that Ahmad and Usama were acting strangely and appeared to be waiting for Suttles to leave. Eventually Ahmad and Usama returned to their RV.
Now suspicious, Deputy Suttles waved Ahmad and Usama over, and Ahmad complied. Suttles said that he was “working drug interdiction” and that Ahmad “was free to leave at any time but that [he] wanted to ask him a few questions about his trip.” Ahmad agreed to talk, telling Suttles that he was traveling with his two children and Usama from Houston to Columbus, Ohio, to visit family. He said that they first flew to Idaho because it was cheaper to rent the RV there.
Ahmad’s geographically perplexing route increased the deputy’s suspicions. He asked to see Ahmad’s driver’s license and the rental agreement, and Ahmad returned to the RV to retrieve the documents. While Ahmad was in the RV, Suttles called Illinois State Trooper Eli Adams to see if he and his drug dog Kilo were nearby.
Ahmad then returned to Suttles and handed him his license and the rental agreement. A few minutes passed while the deputy ran a warrant check, which came back clean. Suttles then asked for consent to search the RV. Ahmad gave permission, but Suttles did not immediately commence a search. He first asked Ahmad to summon Usama from the RV. Ahmad did so. Suttles made the same prefatory comment that he had to Ahmad, telling Usama that he was free to leave but that he’d like to ask a few questions about their trip. Suttles noticed that Usama seemed cold and offered to let him sit in the back of the police squad while they talked. Usama agreed, and Suttles spoke with him for a few minutes in the squad.
About 15 minutes into the encounter, Trooper Adams arrived with Kilo. The officers asked Ahmad if Kilo could sniff around the outside of the RV. He consented. Kilo quickly alerted to the presence of drugs. At that point Ahmad and Usama were detained while the RV was searched. A large quantity of marijuana was discovered, and the officers placed Ahmad and Usama under arrest. Throughout the entire encounter, Suttles spoke in a friendly and conversational tone and never drew his weapon.[ii]
Ahmad and Usama were initially charged under state law. They filed motions to suppress the evidence and argued that Ahmad’s consent was not voluntary. The trial court denied the motions to suppress. They were subsequently indicted under federal law for possession with intent to distribute over 100 kilograms of marijuana. They again filed the same motions to suppress and the district court denied the motions. Ahmad pleaded guilty with the right to appeal the denial of his motion to suppress. They then filed a timely appeal to the Seventh Circuit Court of Appeals.
The issue on appeal was whether Ahmad was subject to a seizure of his person without reasonable suspicion when Deputy Suttles retained his driver’s license and rental agreement before he asked for consent to search the RV, and as such, the consent was rendered involuntary.
The court of appeals then examined legal principles relevant to this issue. The court first stated
[C]onsent searches are valid only if the consent was freely and voluntarily given.” United States v. Duran, 957 F.2d 499, 502 (7th Cir. 1992). Consent is involuntary if it is tainted by “acquiescence to authority,” United States v. McGraw, 571 F.3d 624, 628 (7th Cir. 2009), or by police misconduct that overwhelms a defendant’s free will, such as “illegal stops, detentions or arrests,” United States v. Jerez, 108 F.3d 684, 695 (7th Cir. 1997) (holding that a defendant’s consent to search was involuntary because it immediately followed an illegal seizure); see also United States v. Valencia, 913 F.2d 378, 382 (7th Cir. 1990) (“If the agents illegally seized Valencia, the illegal seizure would have tainted his subsequent consent, since his consent presumably was the product of his detention.”).[iii]
Simply stated, if the deputy seized Ahmad without reasonable suspicion of criminal activity, this would cause the consent that followed to be involuntary and result in the suppression of the drugs.
The second legal principle discussed was regarding seizures of persons. The court stated
[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). “[A] person has been ‘seized’ within the meaning of the Fourth Amendment … only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). If a reasonable person would feel free “to disregard the police and go about his business,” no seizure has occurred. California v. Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).[iv]
Simply stated, if a reasonable person would feel free to disregard the police and leave the encounter, then a seizure has not occurred and the encounter is considered consensual, requiring no reasonable suspicion.
The third legal principle discussed by the court was the “reasonable person” standard that is used to determine if an encounter is consensual or a seizure. The court stated
The “reasonable person” metric is an objective standard, so Ahmad’s subjective state of mind is irrelevant. Estate of Perry v. Wenzel, 872 F.3d 439, 457 (7th Cir. 2017). “Determining whether a seizure has occurred is a highly fact-bound inquiry,” but a number of circumstances may be relevant, including:  whether the encounter occurred in a public place or the police moved the person to a private location;  whether the officer told the person that he was free to leave;  whether the police limited the person’s movement via physical touching, restraint, or other coercive conduct;  whether the officer informed the person that he was the target of an investigation; and  whether the person was deprived of identification or other vital documents “without which he could not leave.” United States v. Tyler, 512 F.3d 405, 410 (7th Cir. 2008). Other relevant factors include whether there was a “threatening presence of several officers and a display of weapons” and “whether the officers’ tone of voice was such that their requests would likely be obeyed.” United States v. Shields, 789 F.3d 733, 743 (7th Cir. 2015) (quoting United States v. Johnson, 680 F.3d 966, 975 n.4 (7th Cir. 2012)); see also United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir. 1993); United States v. Adebayo, 985 F.2d 1333, 1338 (7th Cir. 1993).[v]
The court then applied the legal principles above to the facts of Ahmad’s case and determined that the encounter between Deputy Suttles and Ahmad was consensual and did not escalate to a seizure until the K9 alerted, at which time Ahmad and Usama were detained and the RV was searched. The court then explained their reasons for this determination, applying the legal principles discussed above. First, the entire encounter occurred in a public place, the parking lot of a truck stop. Second, Deputy Suttles spoke in a conversational tone of voice; he did not use verbal commands, did not raise his voice, and did not use a hostile tone. Third, Ahmad was not physically touched nor was his movement restricted. Fourth, there was not a “threatening presence of several officers” nor “a display of weapons.” The only other officer present was Trooper Adams with his K9, and he did not arrive until after Ahmad had consented to a search. Lastly, and deemed very important by the court, was the fact that Deputy Suttles informed Ahmad that he was free to leave and never did anything to contradict that statement until after the K9 alerted on the RV.
Ahmad argued that the effect of the deputy’s possession of his driver’s license and rental agreement transformed the encounter into a seizure because he could not leave without those documents. As such, Ahmad argued that a seizure occurred the moment he handed those documents to the deputy.
Regarding this argument, the court of appeals stated that
[A]n officer’s retention of a suspect’s identification does not necessarily transform an otherwise consensual encounter into a seizure. What’s important is how long and under what circumstances the suspect’s identification documents were retained.[vi]
The court then noted that Deputy Suttles only possessed Ahmad’s driver’s license and rental agreement for a “few minutes” before Ahmad consented to a search of the RV. The court then held
[W]hen weighed in the balance with all of the other circumstances that we’ve mentioned, the deputy’s brief retention of Ahmad’s documents did not transform this otherwise consensual encounter into a seizure. Ahmad’s consent to the search of the RV was therefore voluntary.
As such, the court affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 19-3490 (7th Cir. Decided December 22, 2021)
[ii] Id. at 2-5
[iii] Id. at 6-7 (emphasis added)
[iv] Id. at 7 (emphasis added)
[v] Id. at 7-8 (emphasis added)
[vi] Id. at 14 (emphasis added)