On January 6, 2022, the Seventh Circuit Court of Appeals decided the United States v. Jones[i], which serves an excellent review of the law related to seizures of persons and consent to search when conducting a knock and talk.  The facts of Jones, taken directly from the case, are as follows:

On November 16, 2017, Allen County Sheriff Warrants Division Officers Andrew Brenneke and Duane Romines received an arrest warrant for Whitney Gosnell. Gosnell, listed as 5’3” and 130 to 140 pounds, had allegedly violated the terms of her probation. Following up on an anonymous tip that Gosnell was staying at the Deluxe Inn Motel in Fort Wayne, Indiana, Officers Brenneke and Romines went to the motel around 8:45 p.m. The motel manager informed them that Gosnell was staying in a room with Larry Jones and his son. The officers ran a warrant check, which revealed that Jones had arrests dating back to the 1990s and was listed as a “known resister,” “convicted felon,” and “substance abuser.”

Officers Brenneke and Romines went to Jones’s motel room and listened at the door for voices. Not hearing any, they knocked on the door several times and called out “Larry,” but did not hear a response. Officer Brenneke knew Jones’s street name, so he called out, “Hey, Crunch,” and Jones responded, “What?” One or both officers said, “It’s police. We’re not here for you,” to which Jones said, “She’s not here. She can’t be here.” At this point, the officers had not yet explained that they had an arrest warrant for Gosnell.

The officers asked Jones to open the door, and he requested some time before opening it. Both officers estimate that approximately 30 to 60 seconds elapsed between the first knock and when Jones opened the door, fully dressed. The officers were in full uniform with their guns holstered, and there is no dispute that they spoke in conversational tones throughout the encounter. The officers reiterated that they were not there for Jones, showed him the arrest warrant for Gosnell, and explained that they would like to “verify” Gosnell was not there. Officer Brenneke estimates they spent approximately 15 to 20 seconds explaining they would like to search where a person could be or would hide. Jones repeated that Gosnell was not there but eventually said, “That’s fine,” and moved away from the door. Officer Romines estimated they talked to Jones for less than a minute before entering. At some point, Officer Romines told Jones they “would not open small drawers and things like that.”

After entering the motel room, the officers looked in the kitchenette, bathroom, and shower. Officer Romines then lifted up one of two beds but found nothing underneath. There was a six-to-ten-inch gap between the beds and the floor. Before Officer Brenneke checked under the second bed, Jones stated, “Well, she couldn’t be under there.” Officer Romines responded, “She could be under there, just like she could have been under the first one.” Officer Brenneke proceeded to lift the second bed and saw the firearm.[ii]

Jones was subsequently indicted under federal law and arrested for possession of a firearm by a convicted felon.  He filed a motion to suppress and argued that he was seized at the door of the motel room and that the search under the bed exceeded the scope of his consent.  The district court denied the motion to suppress, and Jones appealed to the Seventh Circuit Court of Appeals.

On appeal, Jones raised the following issues:

  • Whether he was seized at the door of his motel room prior to providing consent?
  • Whether he voluntarily consented to a search of his motel room?
  • Whether looking under the bed exceeded the scope of the consent to search?

The fourth issue raised was procedural and will not be discussed in this article.

Issue One:  Was Jones seized at the door of his motel room prior to providing consent to search his room?

The court of appeals first noted that there are two types of seizures of persons.  The first occurs when an officer physically seizes a person.  The second occurs when an officer uses a show of authority and the person submits to that authority.  The “show of authority seizure” is what Jones asserts in his case.

The court further examined the law regarding seizures of persons and stated

Generally, “officers may approach a willing person in a public place and ask that person questions without violating the Fourth Amendment.United States v. Adeyeye, 359 F.3d 457, 461 (7th Cir. 2004). If the encounter occurs in a public place, courts ask whether a reasonable person would have felt “free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). But if police approach an individual in a confined space, such as a bus, the proper inquiry is “whether a reasonable person would feel free to decline the officers’ request or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). Either way, courts should consider the totality of the circumstances, including where the interaction took place, how many officers were present, the extent to which the police presence was threatening, whether the officers made any show of weapons or physical force, the officers’ language and tone, whether the officers suggested that the defendant was suspected of a crime, and whether the officers told the defendant he was free to leave. United States v. Holly, 940 F.3d 995, 1000 (7th Cir. 2019).[iii]

The court then examined whether knocking on Jones’s motel room door for approximately a minute-and-a-half, while requesting to speak with him and speaking in a conversational tone of voice constituted a seizure.  If the officers’ conduct at the door constituted a seizure, then that seizure could render the subsequent consent to search involuntary.

The court first noted that officers “have an implicit license to knock on someone’s front door.”[iv]  The court also noted that, in the United States v. Jerez[v], they held that officers seized persons in a motel room when they knocked on the door and window of a motel room at 11 p.m., while shining a flashlight into the room, until an occupant of the room answered the door.  The court held that the officers’ conduct transformed what would normally be a consensual encounter into an investigator stop, or seizure.

However, in Jones’s case, the officers knocked on his motel door at 9 p.m. when it less likely a person would be asleep.  They only knocked approximately 90 seconds and told Jones, through the door, the purpose of the encounter, particularly that they were not there to investigate him.  The officers also spoke in a conversational tone and when Jones asked for time to open the door, the officers did not object.   Thus, the court stated that a reasonable person in Jones’ position would have felt free to decline the officer’s request to open his door.

Jones also argued that he was seized when the officers showed him the arrest warrant for the female, because they “flashed” the warrant at him, and he did not have time to read it.  He argued that he did not know if it was an arrest warrant or a search warrant.   The court noted that he did not raise this argument during his motion to suppress.  However, the court stated the officers told Jones, “We’re not here for you,” and Jones replied, “She’s not here.”  This showed that he knew the police were not representing the warrant as a document that authorized his arrest, and that he understood the difference between a search warrant and an arrest warrant.

As such, the court of appeals held Jones was not seized by the officers at the door of his motel room.

Issue Two:  Did Jones voluntarily consent to the officer’s search of his motel room?

The court of appeals first noted the legal principles relevant to this issue and stated

To assess the voluntariness of consent, we consider the totality of the circumstances. United States v. Thurman, 889 F.3d 356, 367 (7th Cir. 2018) (citing Bustamonte, 412 U.S. at 227). This court considers: “(1) the age, education, and intelligence of the defendant; (2) whether he was advised of his constitutional rights; (3) how long he was detained before consenting; (4) whether he consented immediately or was prompted by repeated requests; (5) whether physical coercion was used; and (6) whether he was in custody when he consented.” Id. We have also considered an individual’s “experience with the criminal justice system.” United States v. Clinton, 591 F.3d 968, 972 (7th Cir. 2010). No single factor controls. Thompson, 842 F.3d at 1010 (citing Bustamonte, 412 U.S. at 226).[vi]

The court applied the facts of Jones’ case with the legal principles above.  The court observed that, in a conversational tone, the officers explained to Jones that they were looking for Gosnell, and would like to “verify” that she was not in the room.  Jones responded, “That’s fine,” and moved away from the open door for the officers to enter.  The court stated

Based on these facts, the government has easily satisfied its burden of proving that Jones voluntarily consented.[vii]

Jones argued that the officers did not tell him that he had the right to refuse or obtain his written consent.  The court noted that, while telling a person of their right to refuse consent is a factor to consider, it is not required for consent to be voluntary, nor is written consent required.

Jones also argued that the officer’s presentation of the arrest warrant caused the consent to be involuntary.  He argued that when the officers showed him the warrant and he said, “that’s fine,” and stepped away from the door, he was merely acquiescing to the officer’s show of authority.  However, Jones was not able to cite any court precedent that was similar to his situation where consent was rendered involuntary.  The court of appeals then concluded that the presentation of the warrant for Gosnell did not render the consent involuntary.

As such, the court of appeals held that Jones’s consent to enter and search his room for Gosnell was voluntary.

Issue Three:  Did looking under the bed in Jones’s motel room exceed the scope of his consent to search for Gosnell?

The court first noted that

The scope of consent is assessed under an “objective reasonableness” standard that asks what a “typical reasonable person” would have understood to be within the scope. Thurman, 889 F.3d at 368 (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991)). The burden is on the individual to limit the scope of consent. Thurman, 889 F.3d at 368. Officers may look in any area that could reasonably contain the sought-after item or person. Jimeno, 500 U.S. at 252 (“[I]f [an individual’s] consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization.“).[viii]

The court of appeals then stated that since the officers told Jones they were looking for Gosnell, a reasonable person would understand the scope of the consent to include everywhere that a person could hide in a motel room, to include looking under the beds.  The court stated that it could be

[P]erfectly reasonable that someone could be hiding under a bed to evade arrest, even if it was a tight squeeze.[ix]

Jones also argued that, when he told the officers that Gosnell “couldn’t be under there,” as the officer was about to pick up the bed, he was attempting to limit the scope of his consent.  However, the court stated

To determine whether an individual has limited the scope of consent, courts ask whether the consent can “reasonably be understood” to extend to the challenged search. Jimeno, 500 U.S. at 252. “If a suspect’s attempt to withdraw consent is equivocal, ‘police officers may reasonably continue their search in the premises entered pursuant to the initial grant of authority.'” $304,980.00 in U.S. Currency, 732 F.3d at 820 (quoting United States v. McMullin, 576 F.3d 810, 815 (8th Cir. 2009)). Again, the burden is on the subject of the search to limit the scope of consent. Thurman, 889 F.3d at 368.[x]

In other words, the person must clearly, or unequivocally, tell the officers that they are limiting the scope of their consent.  If they do not do so clearly, the officers may continue the search.  Here, Jones’s statement that she “couldn’t be under there,” was not unequivocal, because it is open to interpretation.  As such, he did not limit the scope of his consent.

Therefore, the court held that the officers were acting within the scope of their consent and they 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. 21-1293 (7th Cir. Decided January 6, 2022)

[ii] Id. at 2-4

[iii] Id. at 9-10 (emphasis added)

[iv] Id. at fn. 1

[v] 108 F.3d 684 (7th Cir. 1997)

[vi] Jones at 15 (emphasis added)

[vii] Id. at 16

[viii] Id. at 20-21 (emphasis added)

[ix] Id. at 21

[x] Id. at 22 (emphasis added)

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