C Consent Versus "search" or "seizure"

LibraryIllinois Decisions on Search and Seizure (2017 Ed.)

C. Consent Versus "Search" or "Seizure"

Ohio v. Robinette, 519 U.S. 33 (1996) (A police officer stopped the defendant's car for speeding. The officer asked for his driver's license and the driver complied. The officer checked the license, gave him a verbal warning, and returned the license. The officer then asked the defendant "[o]ne question before you get gone: Are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?" The defendant replied "no." Without informing the driver that he had a right to refuse the search and leave, the officer then requested to search the vehicle. The defendant consented to the search of his vehicle, resulting in the seizure of a small quantity of narcotics. The defendant moved to have the evidence suppressed, claiming that he was unreasonably seized in violation of the Fourth Amendment. The motion was denied, but the state appellate court reversed his conviction and the Ohio Supreme Court affirmed this reversal, holding that the search resulted from an unlawful seizure. The Ohio Supreme Court established "a bright-line prerequisite" that when a person is validly detained for a traffic offense a police officer, prior to obtaining consent, must clearly state that the person is "legally free to go." HELD: A police officer need not inform a lawfully stopped driver, after the issuance of a ticket or a warning, that he/she is free to go as a condition for getting consent to search the car. The detention/seizure of the defendant was not unreasonable and that the search pursuant to consent was valid. "The officer's subjective intentions do not make continued detention illegal, so long as the detention is justified by the circumstances viewed objectively." The argument that consent is not valid unless the defendant knew that he had a right to refuse the request is rejected. "While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." It would be "unrealistic to require police officers to always inform detainees that they are free to go before consent to search may be deemed voluntary." In conclusion, the "Fourth Amendment test for a valid consent to search is that the consent be voluntary, and 'voluntariness is a question of fact to be determined from all the circumstances'").

Florida v. Jimeno, 500 U.S. 248 (1991) (HELD: A suspect's general consent to search his vehicle for drugs allowed the police to open closed containers within the vehicle that might reasonably contain drugs. The Fourth Amendment is not violated when, under the circumstances, it is objectively reasonable for the police to believe that the scope of the suspect's consent allows them to open the particular container. Here, the container found within the car could reasonably hold the object of the search, namely, narcotics. The defendant did not place any explicit limit on the scope of his consent and was aware that police were looking for narcotics when a police officer declared he had reason to believe defendant was carrying narcotics in the car. A reasonable person can be expected to know that narcotics are generally carried in some form of container).

People v. Smith, 214 Ill. 2d 338, 827 N.E.2d 444 (2005) (The defendant-passenger consented to a pat-down search after the driver was arrested for DUI. The pat-down uncovered a handgun. HELD: No "seizure" took place before the defendant consented to the pat-down search because the incident was a mutual encounter that involved the safety of the public. Here, the defendant would have reasonably believed he had the opportunity to leave the scene, and also the community caretaking doctrine applied. Therefore, no probable cause or reasonable suspicion was necessary where no more than two officers were present, their presence was non-threatening, no weapons were displayed, and no physical touching occurred prior to the search nor forceful language or tone. Second, based on the totality of the circumstances, the defendant-passenger voluntarily consented to the pat-down search because the police asked no accusatory questions, there was no indication of hostility between the party and police, the officers did not exhibit authority in a threatening manner, and the officer was merely following standard procedure in requesting to pat-down the defendant before he provided a courtesy ride to the police station. The evidence should not be suppressed). [Note: Smith was abrogated by People v. Leudemann, 222 Ill. 2d 530, 857 N.E. 2d 189 (2006), which clarified that the "community caretaking doctrine" is analytically distinct from a consensual encounter.]

People v. Bunch, 207 Ill. 2d 7, 796 N.E.2d 1024 (2003) (After traffic stop, wherein officer determined driver unlicensed and decided to have car towed, the "initial detention" of defendant-passenger "continued" after he directed defendant to exit vehicle and move to rear of vehicle where driver stood in handcuffs, and then stood a foot from defendant with a flashlight pointed in defendant's face, while asking defendant "What's your name? Where are you coming from?" HELD: The encounter between the police and the defendant-passenger was non-consensual).

People v. Gherna, 203 Ill. 2d 165, 784 N.E.2d 799 (2003) (where two officers on bicycle patrol positioned their bicycles on both the driver and passenger side of defendant's pick-up truck, which positioning precluded defendant from exiting the vehicle or driving away, requested production of a beer bottle sitting in cup holder console to determine if was open (it was not) and questioned defendant and her daughter about their identities, "a reasonable innocent person. in defendant's position" would not feel free to ignore the officer's requests and go about one's business and, as such, this was not a consensual encounter).

People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999) (holding where officers had concluded a traffic stop by deciding not to issue a citation, then stood at the car's doors for two minutes saying nothing, then requested permission from the driver to search the vehicle, to which the driver replied by asking whether he had a choice in the matter, and then told the driver they were "asking," whereupon the driver agreed to the search, a reasonable person in such circumstances would have felt that he was not free to leave the scene of the stop and, as such, this did not amount to a consensual encounter but rather a seizure; because the "continued detention" beyond the purposes of the traffic stop amounted to an impermissible seizure, the driver's consent to the search was invalid).

People v. James, 163 Ill. 2d 302, 645 N.E.2d 195 (1994) (finding officer's search of defendant's purse was not objectively reasonable where defendant, a passenger in a lawfully stopped vehicle, left her closed purse on the seat when exiting the vehicle, the driver consented to a search of the vehicle, the purse could logically have belonged to any of the three adult women passengers in the vehicle, and the purse was found on the passenger's seat. Also, defendant did not know the driver gave consent to a search of the vehicle, so defendant did not abandon the purse or assume the risk that someone might look into it if she left the car. Also, automobile exception inapplicable because there was no evidence presented that officer had probable cause to believe evidence of a crime would be found in either the vehicle or the purse).

People v. Long, 99 Ill. 2d 219, 457 N.E.2d 1252 (1983) (holding no seizure occurred where police officer followed defendant's truck without activating emergency equipment and defendant voluntarily pulled over to side of road, whereupon officer approached car on foot; defendant free to leave as officer ran license check, etc.).

People v. Duran, 2016 IL App (1st) 152678, ___ N.E.3d ___ (The DEA Airport Task Force Group at O'Hare received a call from a DEA agent in San Diego, California stating that a call came in from a confidential informant that a female by the name of Valerie Santos "would be transporting narcotics from San Diego to Chicago O'Hare Airport." The San Diego DEA agent relayed that Santos would be staying at the Whitehall Hotel. However, the agent did not provide a specific date on which the drug transportation was to occur or when Santos would be checking into the hotel. The agent also did not relay any information regarding the reliability of the informant. Based upon the information provided, three agents with the DEA Airport Task Force Group went to the Whitehall Hotel in search of Santos. At the hotel, agents learned Santos was registered at the hotel. Later that day, agents saw Santos arrive at the hotel in a taxi carrying a black attache bag and then saw enter her hotel room with the bag. Two hours later, agents saw defendant and a woman, Erica Armas, enter Santos' room. When they left, defendant was carrying the bag. Defendant and Armas left the hotel in a Cadillac Escalade, with defendant sitting in the passenger seat. Agents followed the vehicle and requested assistance from a marked Chicago Police vehicle. Two Chicago police officers arrived on the scene and stopped the Cadillac for driving too fast for conditions. During the stop, agents approached the Cadillac and informed the driver, Armas, that they were "conducting a narcotics investigation" and requested permission to search the car, whereupon Armas agreed to the search. When Armas and the defendant exited the vehicle, defendant was put in handcuffs. Next, DEA agents brought a narcotics sniffing dog who searched the exterior and interior of the car and alerted to narcotics upon sniffing the bag. Officers removed the bag and opened it, revealing a white powdery substance, which when tested was determined to be methamphetamine. Defendant was then charged with possession with intent to deliver. The defendant later "filed a motion...

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