Posted by Orin Kerr:
Unusual Fourth Amendment "Consent" Case:
Imagine you get lost driving in McLean, Virginia, late one night, and
that you find yourself near the CIA headquarters. You decide to drive
up the headquarters main gate so you can ask for directions. Moments
after you ask for directions, two armed security officers come out and
yell at you to put your hands up. One officer has a nine-millimeter
pistol; the other has a shotgun positioned so it could be readily
fired at you. You put your hands up, and the officers start asking you
questions. Do you know where you are? Are there any drugs or alcohol
in the vehicle? Do you have any ID?
On the night of October 14, 2002, this happened to Terrence Smith.
The CIA security officers quickly found out that Smith was driving
without a license, and ordered him out of the car. The officers
concluded that Smith appeared to have been drinking, and eventually
arrested him for drunk driving (a charge that he was acquitted of at
trial). During a search incident to his arrest for DWI, the officers
found cocaine in Smith's car. Smith moved to suppress the cocaine on
the ground that he had been unreasonably seized when the officers came
out with their guns and ordered him to put his hands up. Judge Gerald
Lee of the EDVA denied the motion to suppress, ruling that Smith had
been seized but that the police had reasonable suspicion to seize him
under the principles of Terry v. Ohio. Smith was convicted of the
cocaine charges in the U.S. District Court for the Eastern District of
Virginia and sentenced by Judge Lee to two years and two days in
prison. Smith then filed an appeal renewing his argument that the
chared against him resulted from an unreasonable seizure.
In an opinion by Judge Luttig published on January 27th, the
[1]Fourth Circuit affirmed the conviction. This much is unremarkable;
while Smith was obviously seized during the encounter, it seems the
evidence against him was obtained in ways unrelated to seizure. The
evidence was not a fruit of the seizure, and the seizure itself likely
was reasonable given the heightened security concerns at the CIA
headquarters. As a result, the conviction should have been affirmed.
But Judge Luttig didn't affirm on these grounds. Instead, he
resolved the case on a rationale that strikes me as rather remarkable.
According to Judge Luttig, the encounter at the CIA headquarters gate
was actually consensual -- or at least reasonably was believed by the
officers to be consenusal. That's right, Smith actually wanted to have
his liberty restricted, at least according to the court:
We are satisfied that Smith's unauthorized and voluntary approach
to officers outside the CIA headquarters in the middle of the night
justified a belief by the officers that he was consenting to the
customary security precautions required at that time of the night
at the entrance to such a protected facility, regardless of whether
Smith intended to consent to a demand for identification by armed
officers or whether he even knew that he was so consenting. A
reasonable person would certainly know that officers at the CIA
gate would be armed when approaching an unidentified car, and that
such officers would seek to determine who was entering the property
without authorization. As such, a reasonable person would view a
decision to initiate a consensual encounter with officers near the
gate of the CIA as consent to these foreseeable circumstances. The
officers were thus plainly justified in believing that their
encounter with Smith at the Jersey barrier was consensual.
Therefore, if any seizure occurred, it was within the scope of
Smith's consent and thus reasonable within the meaning of the
Fourth Amendment.
This strikes me as quite far-fetched. The Supreme Court's test for
determining the scope of consent is what a reasonable person listening
to the exchange between the officer and the suspect would think the
suspect was agreeing to let the officer do. See Florida v. Jimeno, 500
U.S. 248, 251 (1991). It's hard to imagine that asking for directions
is a form of request to have armed officers order you to put your
hands up and detain you. The guy wanted to get directions; he didn't
expect the Spanish Inquisition (of course, [2]nobody expects the
Spanish Inquisition!). Whether the suspect should have known that
something like this might eventually happen isn't the test;
forseeability is not the same as consent.
The opinion tries to work around this difficulty by using
[3]Illinois v. Rodriguez, 497 U.S. 177 (1990), to modify the Jimeno
test so that it focuses more on the perspective and mindset of the
police officer. I don't think that works, though. In Rodriguez, the
Supreme Court held that "determination of [authority to] consent to
enter [a home to conduct a search] must be judged against an objective
standard: would the facts available to the officer at the moment
warrant a man of reasonable caution in the belief that the consenting
party had authority over the premises?" The idea is that if a person
reasonably seems to have the authority to consent to a search or
seizure, the resulting search or seizure is not invalid if it turns
out later that the person was just posing as someone with that
authority. In the paragraph before the one excerpted above, Judge
Luttig gives Rodriguez a "cf." cite for the view that the key question
is only whether the officer's subjective belief about the consent was
reasonable from his perspective. But Rodriguez is not so broad; it
deals only with authority to consent (something that is not an issue
here), not how to construe the scope of consent.
More broadly, I don't think I have ever seen a case in which a court
found a consensual seizure of a person. I might decide to let the
police have my stuff, and in that case I am consenting to have the
police take away my property. The seizure of my stuff is consensual,
and therefore reasonable. But seizures of persons are distinct from
seizures of property under the Fourth Amendment; the test is no longer
deprivation of a possessory interest, but rather whether a reasonable
person in that situation would feel free to leave. I suppose it's
theoretically possible to voluntarily consent to have your freedom to
leave revoked, but it seems like an odd (and dangerous) rationale.
Under existing precedents, judicial scrutiny of government security
practices generally invites the courts to balance the need for the
practice with its intrusiveness. If a government search or seizure is
deemed "consensual" when a person really should have known it was
coming, however, then such procedures generally will be exempt from
judicial scrutiny.
Thanks to [4]CrimLaw for the heads-up on this case; CrimLaw's
coverage also offers some extensive analysis.
References
1. http://caselaw.lp.findlaw.com/data2/circs/4th/034957p.pdf
2. http://people.csail.mit.edu/people/paulfitz/spanish/t3.html
3. http://supct.law.cornell.edu/supct/html/88-2018.ZO.html
4. http://crimlaw.blogspot.com/2005/02/new-twist-for-consensual-searches.html
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