Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina. Continue reading
Tag Archives: consent
Generally, officers may obtain a valid consent to search only from a person whose reasonable expectation of privacy may be invaded by the proposed search. Sometimes two or more people—for example, spouses or roommates—share a reasonable expectation of privacy in the same place. Generally, either person may give valid consent to an officer. United States v. Matlock, 415 U.S. 164 (1974) (common authority over premises found). However, as discussed below, an exception to this general rule may exist when a physically-present occupant objects. Continue reading →
Officers are allowed to misrepresent their identities in the course of their investigations: they may pose as drug buyers, or prostitutes, or members of an organized crime syndicate. Is the same thing true online? In other words, may an officer claim to be someone else in order to “friend” a suspect on social media and thereby gain access to whatever information the suspect has posted? The answer isn’t clear yet, but I would guess that courts ultimately will say yes. Continue reading →
Here I go again (perhaps on my own) with another update on the state of implied consent after Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). These updates occur more often than teeth-cleanings and may be awaited with the same degree of anticipation. But given that there’s a split of authority developing between the states, and North Carolina courts have not yet weighed in, I think these are developments worth following.
Last week the United States Supreme Court in Fernandez v. California (February 25, 2014) clarified an issue left open in its ruling in Georgia v. Randolph, 547 U.S. 103 (2006): the validity of a consent search by a residential occupant after a co-occupant has previously objected to a search but is no longer physically present when the occupant consents.
Facts. Defendant Fernandez was involved in an armed robbery. Responding officers saw a man apparently involved in the robbery run into a building. A few minutes later, the officers heard sounds of screaming and fighting coming from an apartment in that building. Roxanne Rojas responded to the officers’ knock on the door. She had fresh injuries and admitted she had been in a fight. After an officer asked her to step out of the apartment so he could conduct a protective sweep, Fernandez appeared at the door and told the officers that they didn’t have any right to enter. (Both Fernandez and Rojas were lawful occupants of the apartment.) Believing that Fernandez had assaulted Rojas, the officers arrested him and took him to the police station. An hour later an officer returned to the apartment and obtained consent from Rojas to search the apartment. The defendant’s motion to suppress evidence discovered in the apartment was denied, and he was convicted of robbery and assault.
Legal background. The United States Supreme Court has long recognized valid consent as a lawful way that officers may enter premises without a search warrant or another recognized justification under the Fourth Amendment. In United States v. Matlock, 415 U.S. 164 (1974), the defendant, a co-occupant, had been arrested in the front yard and placed in an officer’s vehicle. Officers then went to the front door and obtained the consent of a co-occupant (the defendant never had objected to the search). The Court ruled that a search of jointly-occupied premises when one of the occupants consents does not violate the Fourth Amendment. The Court in Georgia v. Randolph, however, recognized an exception to Matlock when it ruled that consent to search by one of the occupants is insufficient when a co-occupant is present and objecting to the search.
The Court’s ruling. The Fernandez case involved a variation of Randolph because Rojas’s consent to search occurred well after officers had removed Fernandez. Thus, unlike Randolph, Fernandez was not physically present and objecting when Rojas consented. The Court distinguished Randolph and ruled that Rojas’s consent to search was valid under the Fourth Amendment. The Court noted that Randolph had stressed that its ruling was limited to situations when an objecting occupant was physically present when the co-occupant consented to the search. The Court rejected Fernandez’s argument that the objecting occupant’s continued physical presence is not required to bar a co-occupant’s later consent. The Court ruled that as long as officers have an objectively reasonable basis to remove the defendant (that is, the officers’ subjective motive for removal is irrelevant), the co-occupant’s later consent is sufficient. In this case, the officers properly removed Fernandez so they could speak with Rojas outside Fernandez’s intimidating presence. Also, there was probable cause to arrest Fernandez for an assault on Rojas. The Court rejected another of Fernandez’s arguments that his objection to a search should remain effective until he changed his mind and withdrew his objection, despite Rojas’s later consent.
Post-Fernandez issue. With an objecting occupant’s physical presence given prominence in Fernandez, there remains how physical presence will be defined in future cases. Does the objecting occupant need to be present exactly where the co-occupant is consenting or is it sufficient if he or she is somewhere on or near the premises? The Court appeared to indicate that on or near the premises may be sufficient because it cited Bailey v. United States, 133 S. Ct. 1031 (2013) (detaining occupants of premises during search warrant execution is limited to immediate vicinity of premises to be searched). But the Court did not decide the issue, and a future Court may decide it differently.
Advice to officers. When officers are unsure of their authority to search pursuant to the consent of one occupant when another occupant is objecting, they may wish to consult with their agency’s legal advisor or obtain a search warrant if probable cause exists to search the premises. Or sometimes there will be other legal grounds to enter premises without consent or a search warrant, such as the immediate need to protect a victim from harm, seize weapons for self-protection, make a protective sweep, etc. See the Court’s discussion in Georgia v. Randolph, 547 U.S. at 118-19. See also Arrest, Search, and Investigation in North Carolina, 232-33 (4th ed. 2011), and its 2013 supplement at 28.
The Ninth Circuit recently decided a case that addresses a question I’ve been asked several times: may the police answer a seized cell phone? The answer may depend on the basis for, and circumstances of, the seizure. On the facts before the Ninth Circuit, the court answered no.
The Ninth Circuit case. The case is United States v. Lopez-Cruz, __ F.3d __, 2103 WL 4838908 (9th Cir. Sept. 12, 2013). It arose when two border patrol agents working near the Mexican border saw a driver “‘brake tapping,’ behavior that the agent[s] recognized as consistent with people being ‘guided in to pick up somebody or something.’” The agents stopped the car and began talking with the driver. The conversation heightened the officers’ suspicion that the driver was involved in alien smuggling. The officers noticed two phones in the console of the car and one asked the driver, “Can I look in the phones? Can I search the phones?” The driver said yes, and the officer took possession of the phones. One rang several times, and each time the officer answered it, essentially posing as the driver and having conversations about how the pickup was going and where to find the aliens who needed to be picked up.
The driver was charged with alien smuggling, and moved to suppress the information obtained by the agent during the telephone conversations, arguing that the agent exceeded the scope of the defendant’s consent when he answered the phone. The district court judge granted the motion, the government appealed, and the Ninth Circuit affirmed. It ruled that a reasonable person would not have understood from the exchange between the officer and the defendant that the defendant was giving the officer permission to answer the phone. The court emphasized that the officer was “not simply viewing the contents of the phone . . . but instead . . . [was] actively impersonating the intended recipient” of the calls. The court distinguished several cases in which it had ruled that a search warrant authorized officers to answer a telephone, noting that “[a] search pursuant to a warrant is limited by the extent of the probable cause on which the warrant is based,” while “a search pursuant to consent is limited by the extent of the consent given for the search by the individual.”
Other authorities. I’m not aware of a North Carolina case on point. A few minutes on Westlaw revealed several other out-of-state cases in this area. The cases deal with multiple types of seizures, and multiple legal arguments for suppression. For example, some of the cases address whether an officer who answers a phone and poses as someone else unlawfully intercepts a communication, an issue not raised in Lopez-Cruz.
A majority of the cases that I found ruled in the prosecution’s favor, and it may be worth noting that the author of the Ninth Circuit opinion was Stephen Reinhardt, one of that court’s liberal lions and a frequent subject of Supreme Court reversals. Generally, though, I think it’s fair to say that the issue is unsettled. For reasons I may address in a later post, it looks like the Supreme Court may take a cell phone search case in the upcoming Term, and perhaps the Court’s opinion in that case will provide useful guidance on this issue.
For a sampling of the cases in this area, see the following:
- Commonwealth v. Rosa, 21 A.3d 1264 (Pa. Super. 2011). The court considered two functionally identical cases. In each, narcotics officers seized arrestees’ phones, answered the phones when they rang, and arranged drug deals that resulted in the arrests of additional defendants. In each case, the trial court ruled that the officer’s use of the phone violated the state’s wiretap laws and therefore suppressed the resulting evidence. The state argued that the officers did not intercept a communication, but rather participated in one, but the court ruled that they did so “under false pretenses, posing as the owners of the respective phones in order to exploit the trust of the callers,” and that each officer was “not the party to whom the phones were registered . . . [and] was not the individual [the callers] expected to reach.” The court relied on Commonwealth v. Cruttenden, 976 A.2d 1176 (Pa. Super. 2009) (similar ruling where officer used arrestee’s cellular phone to text message with defendant, with arrestee’s consent), and distinguished Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001) (finding no interception where defendant communicated by computer with an officer posing as an underage girl, because the officer/girl was the intended recipient of the communication).
- Hawkins v. State, 704 S.E.2d 886 (Ga. Ct. App. 2010). A mother contacted the police and gave them her son’s cell phone, which she said contained many drug-related text messages. The defendant texted the phone asking about drugs, and an officer posed as the son and arranged a transaction. As a result, the defendant was arrested. She moved to suppress, arguing that the officer lacked the authority to use the son’s cell phone and that his conduct in doing so was “comparable to a wiretap interception.” Both the trial and the appellate court rejected this argument, the latter stating that it did not “warrant much discussion” because “[t]he officer was a party to the text message communications, notwithstanding that [the defendant] did not know his true identity at the time.” The court reasoned that the situation was “comparable to dialing a wrong number and speaking with someone that you believe is another.”
- State v. Carroll, 778 N.W.2d 1 (Wis. 2010). An officer saw the defendant speeding away from a residence that was under surveillance as part of an armed robbery investigation. The officer pursued the defendant, who abruptly stopped at a gas station. The officer approached him, and “ordered him to drop an unknown object that he held in his hand . . . upon retrieving that object, the officer recognized it as an open cell phone and observed on the display screen an image of [the defendant] smoking what appeared to be a marijuana blunt . . . the officer kept the phone, scrolled through its image gallery, and saw other images depicting [the defendant] with illegal items; and . . . the officer answered an incoming call pretending to be [the defendant], and during that conversation, the caller ordered illegal drugs.” The officer then obtained a warrant to search the phone, which yielded additional evidence that the defendant subsequently moved to suppress. Inter alia, the court ruled that the officer properly answered the phone because he had probable cause to believe that the call would contain evidence of drug crimes and exigent circumstances required answering the call or allowing the evidence to dissipate. The court relied on United States v. De La Paz, 43 F.Supp.2d 370 (S.D.N.Y. 1999) (officer answered calls on drug arrestee’s cell phone; court ruled that this was a Fourth Amendment search but that it was justified by exigent circumstances and the impracticability of obtaining a warrant immediately after an arrest).
- United States v. Rodriguez-Lopez, 565 F.3d 312 (6th Cir. 2009). Officer answered drug arrestee’s phone several times, and each time, the caller was seeking drugs. The callers’ statements were not inadmissible hearsay, because the government did not seek to admit them for the truth of the matter asserted.
Search warrants distinguished. As the Lopez-Cruz court noted, whether officers may answer a phone while executing a search warrant is a different question, one that courts have often answered in the affirmative. See Wayne R. LaFave, Search and Seizure § 4.10(d) (stating that courts, “on a variety of rationales,” have allowed officers who are executing search warrants to answer the telephone while doing so).
Yesterday, I wrote about a pair of recent cases about weaving within a lane of travel. Today, I want to mention another pair of recent cases related to automobiles. Last month, the court of appeals decided, on the same day, two cases that address the scope of a suspect’s consent to search a vehicle. In State v. Lopez, __ N.C. App. __, __ S.E.2d __ (Feb. 21, 2012), an officer stopped a vehicle for speeding. One thing led to another, and the officer came to suspect that the driver was involved in the drug trade. The officer asked for, and received, consent to search the defendant’s vehicle. The officer didn’t just search the interior of the vehicle. He also opened the hood and “released several clips or latches” securing the air filter compartment, eventually finding cocaine in that compartment. The defendant argued that the officer’s conduct exceeded the scope of the consent, making an analogy between the air filter compartment and a closed container. The court of appeals ruled otherwise, stating that “both the hood and air filter compartment are part of the vehicle,” and observing that the defendant did not specifically exclude those areas from his consent.
The second case is State v. Schiro, __ N.C. App. __, __ S.E.2d __ (Feb. 21, 2012). In that case, officers stopped the defendant, obtained consent to search the defendant’s car, and eventually found a gun that had been used in a murder. The gun was found behind some trim in the vehicle’s trunk, and the defendant argued that his consent to search did not allow the search to be so intrusive. The trial court found that the vehicle’s rear quarter panels were fitted with carpet-over-cardboard interior trim and that the trim pieces “were loose,” suggesting that the search, while thorough, did no harm to the vehicle and was therefore permissible. The trial court also noted that the searching officer “was easily able to pull back the . . . trim.” The court of appeals agreed that, on those facts, the search did not exceed the scope of the defendant’s consent.
The Schiro court explicitly distinguished State v. Johnson, 177 N.C. App. 122 (2006), where “a plastic wall panel was removed by a law enforcement officer from the interior of defendant’s van, thereby facilitating discovery of . . . cocaine.” Johnson effectively holds that when a person gives an officer consent to search his vehicle, he should expect a “thorough” search but not “the destruction of his vehicle, its parts or contents.” The federal courts have likewise generally drawn the line at damaging the vehicle. See, e.g., United States v. Gonzalez, 512 F.3d 285 (6th Cir. 2008) (“Applying an objective reasonableness standard, we agree that [the defendant’s] consent to search could not be reasonably understood as authorizing [the officer] to damage the van.”); United States v. Alverez, 235 F.3d 1086 (8th Cir. 2000). Judges, lawyers, officers, and motorists should all be aware that consent to search a vehicle will normally be interpreted to include any part of the vehicle that can be accessed without damage.
To be valid, consent to search must be voluntary. Is consent voluntary when given after an officer thrreatens to obtain a search warrant if consent is withheld?
Generally, yes. See State v. Kuegel, 195 N.C. App. 310 (2009) (consent to search was given voluntarily even though officer said that if consent was denied he “would leave two detectives at the residence and apply for a search warrant”); State v. Fincher, 309 N.C. 1 (1983) (the defendant consented voluntarily where he “was told that although he did not have to give permission to search, if he refused the officers would obtain a search warrant and conduct a search”); United States v. Comstock, 531 F.3d 667 (8th Cir. 2008) (finding that under the totality of the circumstances, the defendant voluntarily consented even though “the officers apparently stated that if [he] refused to consent to the search they would obtain a search warrant, during which time [he] would continue to be detained in handcuffs for an additional two hours”); United States v. Garcia, 890 F.2d 355 (11th Cir. 1989) (“The agents simply told Garcia that they would secure the house and attempt to obtain a search warrant if he refused consent. We find nothing in this statement which would indicate that the agents were trying to do anything more than lawfully request Garcia’s permission to search.”).
Of course, voluntariness is determined under the totality of the circumstances, and there is some out-of-state authority suggesting that a threat to obtain a search warrant is a factor weighing against voluntariness, even if it is not alone sufficient to tip the scales. United States v. Kim, 25 F.3d 1426 (9th Cir. 1994) (when “officers claim that they could obtain a search warrant,” this is a factor that “militate[s] against . . . voluntariness”). This may be especially true if the officer making the threat has no basis for obtaining a warrant. United States v. White, 979 F.2d 539 (7th Cir.1992) (“Baseless threats to obtain a search warrant may render consent involuntary. When the expressed intention to obtain a warrant is genuine, however, and not merely a pretext to induce submission, it does not vitiate consent.”).
Of course, if an officer claims that he already has a search warrant, when in fact he does not, the situation is different. Bumper v. North Carolina, 391 U.S. 543 (1968), holds that the state’s obligation of proving voluntariness of consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority,” as when “consent” is given only after an officer falsely claims to have a warrant.
It was Father’s Day this Sunday, so it’s a good time for a post about family relationships. As a jumping off point, I’ll use a case that was recently highlighted in one of the clipping services to which I subscribe. The case is State v. Hubert, __ S.W.2d __, 2010 WL 2077166 (Tex. Ct. Crim. App. May 26, 2010), and the basic facts are as follows.
The defendant was on parole and lived with his grandfather. The grandfather told the defendant’s parole officer that the defendant was violating the terms of his parole by “driving without a license, [leaving] the state, and [possessing] firearms.” Officers arrested the defendant on the front porch of the grandfather’s house, then asked the grandfather for consent to search the home. The grandfather gave consent, and opened the door of the defendant’s bedroom for the officers, who found guns and ammunition in the room.
The defendant was charged with possession of a firearm by a felon, and he moved to suppress, contending that his grandfather lacked authority to consent to a search of the defendant’s room. The motion was denied by the trial court, but after the defendant was convicted, an intermediate appellate court reversed. The Texas Court of Criminal Appeals, however, reversed again and reinstated the defendant’s conviction.
The court noted that some cases “have followed the view that, when two autonomous adults jointly occupy a dwelling and have separate bedrooms, each occupant generally has a higher expectation of privacy in his or her own bedroom,” and consent by the other occupant is insufficient to support a search of the bedroom. In effect, these cases have created a rebuttable presumption that joint occupants of a residence lack authority to consent to a search of one another’s bedrooms. The Hubert court, however, rejected this view. Noting that the issue of authority to consent to search is “always a fact-specific inquiry,” the court seemed effectively to adopt the reverse presumption: at least where the joint occupants are closely related, the court was inclined to “presume that [each] relative has sufficient common authority over the [other’s] bedroom to authorize [a] search.”
The court further appeared to conclude that the grandfather was the sole owner of the house; that the defendant was not paying rent; and that there were no “indici[a] of exclusion,” such as a lock on the door, that suggested that the defendant’s situation was not subject to the presumption of common authority.
Hubert is in the mainstream of cases in this area. See generally 4 Wayne R. LaFave, Search and Seizure § 8.4(b) (4th ed. 2004) (stating that the “overwhelming majority” of cases hold that a parent’s consent suffices to search a child’s room, even if the child is not a minor); Robert L. Farb, Arrest, Search, and Investigation in North Carolina 80 (3rd ed. 2003) (“Generally, a parent has the authority to consent to a search of a child’s room,” but noting that such authority “may be less likely” if the child is not a minor); United States v. Rith, 164 F.3d 1323 (10th Cir. 1999) (upholding parent’s authority to consent to search of eighteen-year-old’s room); State v. Moore, 316 N.C. 328 (1986) (strongly suggesting that a mother’s consent was sufficient to support the search of her adult son’s room, but also holding that the son failed properly to preserve the issue for appeal). That said, these can be complicated, fact-intensive cases. The older the “child,” the more private the room, and the more the child looks like a tenant, the less likely a court is to find that the parent has the authority to consent to a search.
The scope of a suspect’s consent to search is determined objectively, by “what . . . the typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248 (1991). There is a split of authority regarding whether a reasonable person would understand consent to search a residence as including consent to search associated outbuildings. Compare, e.g., State v. Billups, 575 P.2d 323 (Ariz. 1978) (consent to search house did not include search of shed behind house), with, e.g., Commonwealth v. Eckert, 368 A.2d 794 (Pa. 1976) (consent to search residence did include search of storage shed). See generally 4 Wayne R. LaFave, Search and Seizure § 8.1(c) (4th ed. 2004) (discussing split and expressing “serious question” about the result in Eckert).
Until this week, no North Carolina appellate court had ruled on this issue. That changed in State v. Hagin. In Hagin, officers suspected the defendant of manufacturing methamphetamine, so they went to his house and asked for consent to search. The defendant signed a form consenting to a search of “the personal or real property” at the defendant’s address, described as a “[s]ingle wide mobile home, brown in color with a covered wooden porch.” The officers searched the mobile home, apparently finding nothing. Then, accompanied by the defendant, they searched “a small outbuilding located approximately 15-20 feet from the back porch of the mobile home,” finding materials used in manufacturing methamphetamine.
The defendant was charged with manufacturing methamphetamine. He moved to suppress, arguing that the search of the shed exceeded the scope of his consent. The motion was denied, and the defendant pled guilty, reserving his right to appeal.
The court of appeals affirmed. It noted that in the search warrant context, a warrant for a residence generally authorizes the search of associated outbuildings. State v. Travatello, 24 N.C. App. 511 (1975) (“The search of defendant’s premises did not exceed the scope of the warrant by including a tool shed as well as the house itself.”); State v. Trapper, 48 N.C. App. 481 (1980) (warrant directing officer to search “housetrailer” included a shed 30 feet away from the trailer because it was within the trailer’s curtilage). The court found these cases analogous, and adopted the same rule for consent searches.
The court also emphasized that the “defendant made no objection to the search of the outbuilding,” finding this to be “some evidence that at the time of the search he believed the outbuilding to be within the scope of his consent.” One could reasonably argue that the defendant’s after-the-fact behavior shouldn’t matter beacuse the scope of consent is determined by “the exchange between the officer and the suspect,” and that the defendant’s view about the scope of consent shouldn’t matter because the scope is to be determined objectively. Still, a number of courts have found a defendant’s acquiescence or nonacquiescence relevant in determining whether a particular search exceeded the scope of the defendant’s consent. See, e.g., State v. Stone, 362 N.C. 50 (2007) (defendant objected to search of his underwear after giving general consent to a search of his person; “while not dispositive of the reasonableness of the search, [defendant’s objection] is an indication that it exceeded his expectations”); United States v. Neely, 564 F.3d 346 (2009) (per curiam) (good discussion of when acquiescence is relevant and when it is not); LaFave, supra (relevant whether “the consenting party stands by and watches that activity without voicing any objection”).