D.Md.: Officer’s lack of memory of words used in exchange over consent leads to finding govt didn’t meet burden of proof

Officer’s lack of specific memory on the words used back and forth on the question of consent leads to finding the government didn’t meet its burden of showing consent. United States v. Stanback, 2015 U.S. Dist. LEXIS 171751 (D.Md. Dec. 23, 2015):

Even if Officer Stevenson made a clear request for consent, the Government has not established that Stanback gave his consent. When asked whether Stanback said “yes, you can search me,” Officer Stevenson acknowledged that Stanback never said yes, but noted that he “never said no.” Id. at 35. Later, he stated that he could not recall “how it was worded” but that he was “pretty sure” Stanback said “yes, you can search me,” id. at 41-42, and that Stanback consented to the search “in general.” Id. at 46. These varying answers show that Officer Stevenson did not have a clear memory of what statement, if any, he construed as providing consent. The Government therefore has not met its burden to show that Stanback expressly consented to a search of his person.

Even when there is no express consent, however, consent “may be inferred from actions as well as words.” See United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003). Stanback’s action of raising his hands prior to the search arguably could constitute implied consent to search. See, e.g., United States v. Wilson, 895 F.2d 168, 170-72 (4th Cir. 1990) (noting that where a law enforcement officer asked the defendant if he could search his person, the defendant’s act of shrugging his shoulders and extending his arms constituted consent). At the same time, there is a “difference between voluntary consent to a request versus begrudging submission to a command.” United States v. Robertson, 736 F.3d 677, 680 (4th Cir. 2013); see also Bumper, 391 U.S. at 548-49 (holding that the burden of proving voluntary consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority”). Because the Government has not satisfactorily established that Officer Stevenson asked Stanback for consent to search him, the Government cannot demonstrate that Stanback’s raising of his arms constituted consent rather than submission to a stated intention to search. This conclusion is further bolstered by the fact that Officer Stevenson never told Stanback that he could decline the search, which, although not dispositive, is “highly relevant.” See Wilson, 895 F.2d at 172. Thus, under the totality of the circumstances, the Government bas not established consent.