Defendant merely submitted to a claim of authority to search; it could not be found to be by consent. The situation was completely police dominated, and nothing was asked–it was directed. United States v. Ivory, 2014 U.S. Dist. LEXIS 155784 (E.D. Wis. November 4, 2014)*:
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While Ramirez could not recall the exact words he used, it was established at the de novo hearing that he did not ask defendant if he could pat him down; rather, he told defendant that he “would have to pat him down” or “need[ed] to pat him down” before placing defendant in the back of the squad car.4 (R. 40 at 14, 20-21.) The government argues that in the context of this encounter a question was unnecessary, but it provides no authority that voluntary consent can be derived from a declaration rather than a request. See United States v. Cole, 195 F.R.D. 627, 632-33 (N.D. Ind. 2000) (collecting cases holding that consent cannot be obtained from declarative or imperative statements regarding what the police want or need to do). This argument also overlooks the police-dominated nature of the scene. More than 20 officers had been dispatched to the area of the shooting, and defendant and his fellow witnesses had been kept there for about an hour while the police investigated. Defendant’s response – something to the effect of “okay” or “alright” \u2013 constituted acquiescence rather than agreement. See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”) (footnote omitted); see also Cole, 195 F.R.D. at 633 (indicating that when the police say they want to undertake some activity, agreement to such an imperative statement is often seen as submission to a claim of authority) (citing 3 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, \u00a7 8.2(a) at 642 (1996)). A person in defendant’s situation cannot be expected to argue with the officer or resist the pat down in order to preserve his Fourth Amendment rights. Defendant’s act of raising his hands \u2013 after Ramirez tapped his elbows \u2013 is also most reasonably construed as submission rather than consent. See id. at 634 (considering whether the officer physically touched the defendant in determining consent).<\/p>\n
Finally, although the inquiry is an objective one, it is also telling that the officers themselves did not view this as a consent search. Boyack’s report, prepared with Ramirez’s input and approval, says nothing about consent. Instead, the officers indicated that this search was conducted pursuant to policy. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Defendant merely submitted to a claim of authority to search; it could not be found to be by consent. The situation was completely police dominated, and nothing was asked–it was directed. United States v. Ivory, 2014 U.S. Dist. LEXIS 155784 … Continue reading