N.D.W.Va.: Defendant did not consent to what officer was doing without asking by defendant merely not speaking

Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 902 F. Supp. 2d 681 (N.D. W.Va. 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W.Va. September 28, 2012):

In the absence of any gestures or conduct that could reasonably be construed as consent, Harvey’s implied consent would have to be premised exclusively on his silence and lack of resistence to Officer Ammons’ actions. Notably, the government has cited to no case stating that consent to search can, in the first instance, be inferred solely from the silence of a defendant who was never asked. Rather, the weight of authority holds that “‘the government may not show consent to enter from the defendant’s failure to object to the entry. To do so would be to justify entry by consent and consent by entry.'” United State v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996) (quoting Shaibu, 920 F.2d at 1427), overruled on other grounds by Arizona v. Gant, 556 U.S. 332 (2009); see also United States v. Little, 431 F. App’x 417, 420-421, 2011 WL 2518674, *3 (6th Cir. 2011) (no implied consent where officer “merely followed Defendant into the house when Defendant went in to get additional clothing”); Roe v. Texas Dept. of Protective and Regulatory Services, 299 F.3d 395, 402 (5th Cir. 2002) (“Silence or passivity cannot form the basis for consent to enter.”).

Here, the sole evidence is that, after the defendant mentioned the location of his identification, he was either led or escorted into his home by law enforcement. It is undisputed that he was “detained” and “not free to leave” pursuant to the ongoing investigation centered around the original traffic stop. (Dkt. No. 44 at 46-47). There is no evidence that Harvey said or did anything which would give rise to a reasonable inference of consent, or that Officer Ammons said or did anything which would give rise to a reasonable inference that consent was requested. A reasonable person under these circumstances would have believed that the Officer was legally authorized to either lead or escort him into the home.

As such, the Court concludes that, under the circumstances of this case, Harvey’s silence and lack of resistence in response to Officer Ammons’ accompaniment evinces, at most, a mere acquiescence to a show of lawful authority. See, e.g., Cole, 195 F.R.D. at 634 (suspect told that police “needed” his identification simply acquiesced to lawful authority); see also United States v. Vasquez, 638 F.2d 507, 526-27 (2d Cir. 1980) (when police told defendant they were going to take him home to arrest his wife, defendant did not consent to entry, as the matter was “presented to him as a fait accompli”); United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973) (when police told woman at her apartment that “we want the package” consent was not voluntary, in part because this “was an outright demand-without ifs, ands or buts”); United States v. Gwinn, 46 F.Supp.2d 479, 484 (S.D. W. Va. 1999) (defendant’s “mere acquiescence to the search was not enough to constitute implied consent”).