Do You Mind if I Search?

I’ve bumped into a couple recent cases in which law enforcement officers have requested consent to search a car and have received ambiguous responses. (For a discussion of when officers may ask for consent to search during a traffic stop, see this prior post and the linked document.) I thought I’d share the cases and a couple general points in this area. Thanks to my colleague Shea Denning for pointing me to the first case, and hat tip to Orin Kerr at the Volokh Conspiracy for flagging the other.

1.United States v. Pena, 2010 WL 93861 (E.D.N.C. Jan. 8, 2010) (slip op.). A Roanoke Rapids officer stopped the defendant’s car on I-95 for a window tint violation. The defendant didn’t have a valid driver’s license, and he and his passenger gave inconsistent answers about their destination, their relationship, and other matters. The officer nonetheless issued the defendant a citation and said “that’s that.” Then the officer asked “if [the defendant] minded if [the officer] searched the vehicle. [The defendant] said, ‘Sure,'” which the defendant later agreed meant sure, the officer could search, not sure, the defendant minded. The defendant then said he was in a rush, and the officer indicated he would search quickly. He asked the defendant to sign a written consent, but the defendant refused, saying that the car belonged to the passenger. The officer then searched the car based on the oral consent, finding evidence of identity theft and related crimes. (I’m omitting some facts that aren’t critical, including some facts suggesting that the defendant effectively revoked his consent, but only after the officer had already found drug residue in the car, justifying a continued search even without consent.) The defendant moved to suppress, arguing, inter alia, that “although he first responded ‘sure’ when asked if [the officer] could search, the later statement that he could not sign the written consent because it was not his car shows that his real intent was to deny the request to search.” The court found that the case was a “close call,” but denied the motion, finding that the oral consent was unambiguous while the refusal to sign the written form was equivocal, especially in light of the defendant’s failure to object immediately when the officer began searching.

2. Meekins v. State, __ S.W.3d __, 2009 WL 4876866 (Tex. Ct. App. Amarillo Dec. 17, 2009). An officer stopped the defendant’s car for turning without signaling. For reasons that aren’t relevant to this post, the officer suspected that the defendant might be involved in drug activity. The officer asked the defendant, six times, to consent to a search of the car. “The officer asked that many times because appellant would not commit one way or the other. Indeed, captured on the video of the event was the officer informing [the defendant] that he was being asked a ‘yes or no’ question. . . . [T]he last request propounded to [the defendant] consisted of [the officer] asking: ‘Do you mind if I look?’ To it, [the defendant] answered ‘yes,’ according to the officer.” Id. As a result, the officer ordered the defendant out of the car. This eventually resulted in a search of the defendant’s person, which turned up drugs. The defendant moved to suppress, arguing that he hadn’t consented to the vehicle search and that the search of his person was the fruit of that poisonous tree. He lost, pled guilty, and appealed. The appellate court reversed. It held that “the State must prove by clear and convincing evidence that the consent was freely and voluntarily given,” and that it was “positive and unequivocal.” The court found no such unequivocal consent, in light of “the nature of the question to which [the defendant] said ‘yes.'” Specifically, “The officer had not asked ‘may I search’ but rather ‘would you mind if I look?’ Answering ‘yes’ to the latter meant that [the defendant] did mind,” i.e., that he did not consent. The court was also concerned about the defendant’s “prior evasiveness in response to the officer’s persistence in asking for consent. When combined, the circumstances paint not a picture of clarity or unequivocation but rather one of vacillation and hesitance.”

A couple of general points come out of these cases.

• “There must be a clear and unequivocal consent” to authorize a consent search. State v. Pearson, 348 N.C. 272 (1988). Unlike the Miranda context, where the rule is that an ambiguous assertion of a suspect’s right to counsel does not require an officer to stop the interrogation, ambiguity with respect to consent weighs against the state. Therefore, officers should be careful to obtain a clear expression of consent.
• Officers should try to avoid asking for consent using phrases like “do you mind if I search?” The meaning of an affirmative response to such inquiries is unclear, as the cases above illustrate. If an officer does employ such a phrase, he or she should clarify the meaning of any response.
• In-car video recorders protect officers from complaints of misconduct and serve other salutary purposes. But they also enable close analysis of the exact words used in interactions between officers and suspects. As such recorders march toward ubiquity, the importance of officers expressing themselves precisely will only increase.