Fourth Amendment Applicability—Waiver Through Consent Search

• Jurisdiction: Maryland

VI. Fourth Amendment applicability—waiver through consent search

Consent search issues are (a) whether consent was actually given; (b) if consent was given, whether consent was given voluntarily under a "totality of the circumstances"; (c) if consent was given voluntarily, what was the scope of the consent that was given; and (d) if consent was given by one other than the one against whom the evidence is admitted, whether the consenting person had actual or apparent authority to consent. See United States v. Watson, 423 U.S. 411, 424-25 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Logue v. State, 282 Md. 625, 628-31 (1978); State v. Wilson, 279 Md. 189, 201-05 (1977).

In Simms v. State, 4 Md. App. 160, 173-74 (1968), the Court of Special Appeals held that a search that is otherwise unlawful may be lawful if the defendant voluntarily consents to the search. See Randolph v. State, 1 Md. App. 441, 444 (1967).

A. Whether consent was actually given

The State bears the burden of proving, by a preponderance of the evidence, that the defendant consented to a warrantless search. Mere acquiescence to police authority is insufficient to prove that consent was actually given. Consent may be given expressly, in writing or orally, or it may be given implicitly by conduct or gesture.

1. Consent given

When police make it known that they wish to enter a home or conduct a search, an "unambiguous gesture of invitation or cooperation or an affirmative act to make the premises accessible" may be implied consent to enter and search.

Police request coupled with a failure to object

In United States v. Mendenhall, 446 U.S. 544, 559 (1980), the Supreme Court held that the defendant consented to the search. The Court held that the defendant's statement that she had to catch a plane was not evidence of refusal to consent, but rather a request that the search be conducted quickly. In Lewis v. State, 285 Md. 705, 719 (1979), the Court of Appeals held that the defendant implicitly consented to a search when (a) he had been cooperating in an investigation of the murder of his wife and child; (b) police told the defendant that, while he was travelling out of state, they needed to enter his home to conduct a search; (c) the defendant did not agree to a search, but did not object to the police conducting a search; and (d) the defendant left his house key with a neighbor so police could enter while he was away.

Police request coupled with a passive "yes"

In Mosley v. State, 289 Md. 571, 579 (1981), the Court of Appeals held that, when the defendant stated that he "did not care if [police] looked at [the briefcase]," when the officer asked to inspect it, the defendant consented. In Gross v. State, 235 Md. 429, 438, 443 (1964), the Court of Appeals held that the defendant's statement that she "didn't give a damn what the police did" was consent. In Combs v. State, 237 Md. 428, 436-37 (1965), the Court of Appeals held that the defendant consented to a search of his clothing when he handed his clothing to police at their request.

Police request, followed by opening the door and stepping back

In Chase v. State, 120 Md. App. 141, 150-51 (1998), the Court of Special Appeals held that the defendant's wife implicitly consented to entry into the home when she opened the door wide, and stepped out of the way, in response to police telling her, at the door, that they needed to speak with her husband. In In re Anthony F., 293 Md. 146, 147-48 (1982), the Court of Appeals held that the defendant's sister implicitly consented to entry into the defendant's home when (a) police knocked on the door and requested entry into the home; and (b) the defendant's sister opened the door wide and stepped back, so that police could enter. But see Turner v. State, 133 Md. App. 192, 214 (2000) ("[I]n the absence of a request by the police to enter, appellant's act of opening the door to his apartment and walking through it cannot give rise to a reasonable inference that he was giving the police permission to follow him.").

Consent implicitly given when items are abandoned

In Bratt v. State, 62 Md. App. 535, 540-41 (1985), the defendant moved out of an apartment five months before the search. The Court of Special Appeals held that the new tenant could consent to a search that included boxes left behind by the defendant, because the new tenant had control over the entire premises, and the defendant abandoned the items when he failed to demonstrate an intent to return.

Consent implicitly given when the defendant complied with police requests

In Abeokuto v. State, 391 Md. 289, 335 (2006), the Court of Appeals held that the defendant consented to a search and seizure of his clothing when police asked for his jeans, and the defendant removed his jeans and gave them to them.

2. Consent given but later withdrawn or modified

In Gadson v. State, 102 Md. App. 554, 562 (1994), rev'd on other grounds, 341 Md. 1 (1995), the Court of Special Appeals stated, in dicta, that consent, once given, may be revoked at any time.

3. Consent not given

Refusal to give consent to a search cannot be used as evidence of guilt. Longshore v. State, 399 Md. 486, 537 (2007).

No consent requested means no consent given

If police do not seek permission to enter or search, there is no implied consent. Turner v. State, 133 Md. App. 192, 208 (2000).

Consent requested, followed by no response, by a nonspecific response, or by an ambiguous response, means no consent

In Turner, the failure to respond to a request to enter or search, or a non-specific or ambiguous response to a request to enter or search, is not an implied consent. Id.

Walking through a door and failing to close it does not equal consent

In Turner, the Court of Special Appeals held that, without a police request to enter, the defendant's act of walking into his apartment, without shutting the door, in response to a police request for identification, is not an implied consent to enter. Id.

If police claim an item is abandoned, consent is measured by whether the defendant had an REP in the item

In Bond, 529 U.S. at 338-39, a border patrol agent boarded a public bus to determine the immigration status of the passengers. An agent squeezed soft luggage that had been placed overhead and noticed a "brick-like" object. Although the defendant consented to a search of the luggage, the Supreme Court held that the agent's physical manipulation of carry-on luggage was non-consensual because the defendant retained an REP in his luggage. Merely exposing luggage to the public is not abandonment of an REP and was not consent to search. Passengers do not consent to have their bags manipulated in an exploratory manner for determining the contents.

In Stanberry, 343 Md. at 725-26, 737, police were conducting a drug interdiction investigation at a highway rest stop and entered a commercial bus. One overhead bag was not claimed by any passenger when police repeatedly asked who owned the bag. The defendant, who was not on the bus during the search, returned and initially claimed ownership, but then denied ownership.

The Court of Appeals held that it was unreasonable for police to infer that the defendant abandoned his suitcase because the defendant was silent as to ownership or denied ownership. The test for determining abandonment is whether the defendant retained an REP, based on both the defendant's conduct and intent. The Court held that the defendant did abandon his REP by leaving his bag on the bus when he briefly disembarked to go to the bathroom.

In Bratt, 62 Md. App. at 540-41, the defendant moved out of his apartment five months before the search occurred. The Court of Special Appeals held that the new tenant could give police consent to search the entire residence, including boxes the defendant left behind, because the new tenant had control over the entire premises and the defendant had no intention to return. Boxes left there for five months were abandoned property.

In Titow v. State 75 Md. App. 555, 558-59 (1988), the Court of Special Appeals held that, even accepting the State's version of events, the defendant did not consent to a seizure and search of his luggage. The defendant initially rebuffed multiple attempts by DEA agents to seize his luggage and his eventual begrudging consent occurred after a threat to take the bag into custody without his consent.

4. Whether consent that was given was given voluntarily such that Fourth Amendment rights were waived

The State bears the burden of proving, by a preponderance of the evidence, that consent was freely and voluntarily given and that it was not the result or duress or coercion. McMillan v. State, 325 Md. 272, 284 (1992). This is a question of fact, usually pitting the defendant's testimony against the officer's testimony. Great weight is given to the findings of the suppression judge who rules on the suppression motion. Although the appellate court must make an independent de novo constitutional appraisal of the record, the trial court's factual findings are not overruled unless clearly erroneous. Scott v. State, 366 Md. 121, 143 (2001).

In Logue v. State, 282 Md. 625, 630-31 (1978), the Court of Appeals held that the consent was voluntary, giving weight to the judge's conclusion that police testimony in the suppression hearing was more believable than the testimony favorable to the defendant

5. Voluntary under a "totality of the circumstances"

For a consent search to produce constitutionally admissible evidence, the consent, in addition to actually being given, must be voluntary under a "totality of the circumstances" and must not be actually or subtly coerced. Voluntary consent constitutes a waiver of the defendant's Fourth Amendment rights. In Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973), the Supreme Court held that whether consent was "voluntary" or was a product of express or implied duress or coercion is a factual question.

In Whack v. State, 94 Md. App. 107, 120-22 (1992)...