IA: A shrug is not a “‘clear indication’ of consent to a search.”

A shrug is not a “‘clear indication’ of consent to a search.” State v. Leaton, 836 N.W.2d 673 (Iowa App. 2013):

We disagree with the State that Leaton’s lifting of his arms to belt level was a “clear indication” of consent to a search. We stand with other courts that have considered the question and concluded that a shrug is not a sufficient gesture to consent to a search. See, e.g., State v. Harris, 642 A.2d 1242, 1246-47 (Del. Super. Ct. 1993) (concluding “[a] shrug of the shoulders, palms extended upward” was not a sufficient gesture of consent to search a toolbox); State v. Zapp, 108 Idaho 723, 701 P.2d 671, 674 (Idaho Ct. App. 1985) (finding shrugging shoulders and holding up a bag were not sufficient gestures of consent to search the bag); People v. Raibley, 338 Ill. App. 3d 692, 788 N.E.2d 1221, 1230, 273 Ill. Dec. 345 (Ill. App. Ct. 2003) (concluding defendant’s shrug “was not an unambiguous expression of consent”); State v. Mitzel, 2004 ND 157, 685 N.W.2d 120, 125 (N.D. 2004) (finding “[m]ere acquiescence to police authority is insufficient to show consent” where defendant “kind of shrugged and started walking back to the bedroom”). As one court has stated, “In the case of nonverbal conduct, where dueling inferences so easily arise from a single ambiguous gesture, the defendant’s intention to surrender this valuable constitutional right should be unmistakably clear.” People v. Anthony, 198 Ill. 2d 194, 761 N.E.2d 1188, 1193, 260 Ill. Dec. 632 (Ill. 2001).

A shrug can express “aloofness, indifference, or uncertainty.” Merriam Webster’s Collegiate Dictionary 1084 (10th ed. 2000). … The State has the burden of proving the consent was voluntary. [Anthony, 761 N.E.2d] at 1192. The State cannot carry that burden by proving that defendant shrugged. The shrug could have meant “I don’t know.” It could have expressed aloofness—or contempt. It could have expressed defendant’s acquiescence to authority ….

Raibley, 788 N.E.2d at 1230.

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