N.D.W.Va.: When response to request for consent is ambiguous, failure to object is grant of consent

Defendant’s response to a request for consent was ambiguous. Then his failure to object is inferred to be consent. United States v. Merritt, 2014 U.S. Dist. LEXIS 57886 (N.D. W.Va. March 26, 2014), adopted 2014 U.S. Dist. LEXIS 57887 (N.D. W.Va. April 25, 2014):

Additionally, “[i]n cases where a defendant’s response to a request for permission to search is ambiguous, courts have generally relied upon the defendant’s failure to protest the search in finding consent.” United States v. Barrington, 210 F.Supp.2d 773, 778 (E.D.Va. 2002) (collecting cases). Thus, even to the extent that Defendant’s words and conduct can be deemed an ambiguous response to the agents’ request for entry, the evidence unambiguously shows that Defendant never protested the agents’ entry into, or their continued presence in, his home. Had Defendant not intended his conduct to be viewed as consent to enter, surely he would have objected when the agents followed him into the house and sat down on his couch. Yet Defendant offered no objection at all; instead he cooperated fully with the agents and even pointed out numerous other stolen items throughout the house. In fact, he subsequently signed a consent to search form for the cab of his truck and traveled with the agents to his nephew’s house to attempt to retrieve one of the stolen firearms.4
4To be clear, the Court is not suggesting that consent can be inferred solely from a failure to object. However, failure to object as a nonverbal response to the agents’ request for permission to enter can clearly be inferred as consent. See United States v. Jaras, 86 F.3d 383, 390 (5th Cir.1996) (consent cannot reasonably be implied from a suspect’s silence or failure to object unless the officer expressly or impliedly asked for consent to search); Guerrero v. Deane, 750 F.Supp.2d 631, 646-47 (“In examining the totality of the circumstances to determine whether a reasonable officer would interpret a gesture or conduct as consent, it is necessary to consider the question posed by, and the actions of, the law enforcement officers to which the defendant’s non-verbal conduct was a response.”).