FL4: Refusal to provide key to locked console is denial of consent; getting key was unreasonable search

Defendant’s refusal to provide key to locked console in car during consent search of the car was a denial of consent as to the console. J.J.V. v. State, 17 So. 3d 881 (Fla. App. 4th DCA 2009):

In this case, the locked console in the defendant’s car was as much a manifestation of an expectation of privacy in the contents as the locked briefcase in Wells. In both cases, if law enforcement officers wanted access, they had to ask for the key or lock combination or use significant force to open the container. See Mendoza-Gonzalez, 318 F.3d at 671. When the deputy in this case asked for the key, appellant told him that it was not available — that only his mother had a key. In spite of that, the deputy located the key himself and used it to gain access to the console. While his action in doing so was not as intrusive as prying the lock open, it was nonetheless a violation of the defendant’s expectation of privacy in the console. If the defendant had wanted the officer to search the console, he would have given him the key, instead of denying that he had one. Appellant’s actions should have been objectively seen as an affirmative attempt to narrow the scope of his general consent and prevent a search inside the console.

Police officer’s turning on flashing lights to pull up behind an already parked car is not a stop. There are safety reasons for the lights. Jacobs v. United States, 981 A.2d 579 (D.C. App. 2009).*

Police officer in uniform is not inherently coercive; it is but a factor on the totality of consent. People v. Castigilia, 394 Ill. App. 3d 355, 333 Ill. Dec. 738, 915 N.E.2d 809 (2009):

Although an officer’s attire is, perhaps, a relevant factor that may occasionally tip the balance toward or away from a finding that a particular encounter is a seizure, Ocampo hardly suggests that attire is a paramount consideration or even a particularly significant one. To be sure, a police uniform is a vivid reminder of the authority a police officer holds. However, it is the exercise (or apparent exercise) of that authority–not merely its existence–that may result in an encounter becoming a seizure. Thus, a confrontation with a police officer is not a seizure on the basis that the officer’s authority produces an inherent pressure to cooperate. Rather, as the leading commentator on the fourth amendment has suggested, an encounter between a police officer and a civilian “is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.” 4 W. LaFave, Search & Seizure § 9.4(a), at 425 (4th ed. 2004).

This test, of course, assumes belief in a sort of legal fiction. As defendant notes, “in a truly consensual encounter with a police officer, one would not expect to have to display one’s identification to the officer, or be asked to submit to a search.” To the contrary, it has been stated that “[n]o fourth amendment violation occurs when an officer approaches a person in a public place *** and asks if he is willing to answer some questions and provide identification.” People v. Evans, 296 Ill. App. 3d 1, 9 (1997), citing Mendenhall, 446 U.S. at 555, 64 L. Ed. 2d at 510, 100 S. Ct. at 1877, and Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983); accord People v. Dent, 343 Ill. App. 3d 567, 578 (2003) (“a police officer, in most cases, does not violate the fourth amendment *** by approaching an individual and questioning him or asking for identification,” but this is true only if the individual remains free to disregard the questions and walk away). Similarly, “[a] request for consent to search does not convert a consensual encounter into a seizure ‘as long as the police do not convey a message that compliance with their request is required.'” 4 W. LaFave, Search & Seizure § 9.4(a), at 427 (4th ed. 2004), quoting Florida v. Bostick, 501 U.S. 429, 435, 115 L. Ed. 2d 389, 398-99, 111 S. Ct. 2382, 2386 (1991); see also United States v. Childs, 277 F.3d 947, 950 (7th Cir. 2002) (“the Supreme Court has held repeatedly that police may approach persons and ask questions or seek their permission to search, provided that the officers do not imply that answers or consent are obligatory”).