CA4: Handing over keys when told officer was searching trunk was not consent to search the whole car; failure to object during search not consent

When officer told defendant to get out of the car and he was searching defendant’s trunk, defendant’s handing over the keys to the officer was not consent to search the whole car. The limit of consent was the trunk. Defendant’s silence or failure to object during the search is not acquiescence to the search. (The alternative ground of a protective search of the interior was not supported by reasonable suspicion.) United States v. Neely, 564 F.3d 346 (4th Cir. 2009):

We begin by addressing the first two factors relied upon by the district court: Neely’s decision to hand his keys to Officer Tran and leave the driver’s door open after exiting the vehicle. While we acknowledge that non-verbal conduct can be sufficient to establish consent, see, e.g., United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003), such conduct is still subject to Jimeno’s objective reasonableness standard. And, the Government’s “burden is heavier where consent is not explicit, since consent is not lightly to be inferred.” United States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984) (internal quotation marks omitted). Here, Neely did not offer his keys in response to a law enforcement officer’s request to search his car, an action which might reasonably be viewed as non-verbal consent. Nor did Neely offer his keys while asking Officer Tran whether he would like to search his vehicle. Instead, Neely surrendered his keys only after Officer Tran instructed him to get out of the vehicle. Neely had already verbally placed a limit on his consent to have his vehicle searched; surrendering his keys to Officer Tran after being ordered to get out of his car was consistent with his prior limitation because Tran would need the keys to open Neely’s trunk. Likewise, Neely’s decision to leave the driver’s side door open is not indicative of non-verbal consent. Officer Tran directed Neely to the rear of his car immediately as he began exiting the vehicle; it is thus unsurprising that Neely did not refuse to follow Tran’s directions simply so that he could close the door behind him. Given the facts presented here, we find that neither of these actions are sufficient to overcome his prior verbal limitation.

. . .

Finally, the fact that Neely continued speaking with an officer during the search is essentially meaningless. The videotape of the incident clearly provides that Neely merely responded to the officer’s questioning; that decision has no bearing on the scope of his consent. Moreover, taking these factors together does not alter our conclusion. Neely’s decision to give Officer Tran his keys and leave his car door open were the product of cooperation with a law enforcement officer, not an intentional indication of consent. Similarly, Neely’s failure to object to a search carried out while he was being questioned by a second police officer is not the type of silence we found indicative of consent in Jones. Thus, Officer Tran’s search of the interior of Neely’s vehicle cannot be justified on the basis of consent.