4th Amendment Consent

Facts:

The police spot a parked car occupied by two young men and approach it even though they have no justification for suspecting the young men are engaged in criminal activity. The young men notice the police and one of them bends down. The police ask the driver of the car if they can search the car for drugs. The driver consents, and during the search, the police find two rocks of crack-cocaine under the driver’s seat.

Issue:

Did the police’s suspicionless search of the car violate either the young man in the driver seat’s or the young man in the passenger seat’s Fourth Amendment rights against unreasonable searches and seizures?
Short Answer:

No. A reasonable person in these young men’s situation would have felt free to refuse the officer’s request to search the vehicle because the police merely identified themselves and asked to search the vehicle.

Discussion:

Police encounters with individuals fall into two categories: (1) non-seizures or consensual encounters and (2) seizures, which can be divided into two subcategories: (a) investigatory detentions and (b) arrests. See State v. Bryant, 161 S.W.3d 758, 761 (Tex. App.—Fort Worth 2005, no pet.) (citing State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). Police do not need to suspect an individual of any criminal wrongdoing before they engage in a consensual encounter with a person. Florida v. Royer, 460 U.S. 491, 497 (1983). But once a person submits to either physical restraint or an official show of authority by the police, the person has been “seized” for Fourth Amendment purposes. Florida v. Bostick, 501 U.S. 429, 434 (1991). But when an officer approaches him to ask him questions or permission to search him, his possessions, or his property, the person has not been “seized” as long as a reasonable person in the same circumstances would feel “free to refuse” the officer’s demands. Id. at 431. And whether a reasonable person would feel free to refuse an officer’s demands is a “totality of the circumstances” consideration. Id. at 439-40. Yet when an officer merely identifies himself and asks if a person is willing to answer questions, a reasonable person will always feel free to refuse the officer’s request and the encounter is consensual. Royer, 460 U.S. at 497. And as long as a person consents to an officer’s request to search him, his possessions, or his property during a consensual encounter, the search does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. Florida v. Bostick, 501 U.S. at 433-34.

In Florida v. Bostick, two police officers, one carrying a pistol in a zipped bag, boarded a bus and began questioning its passengers. Id. at 431. The officers approached Bostick and asked for his ticket and identification. Id. After looking at his ticket and identification, the police returned them to him and identified themselves as narcotics agents looking for illegal drugs. Id. at 431-32. The officers, without drawing their weapons or gesturing with the pistol in the bag, asked Bostick if they could search his luggage and told him that he had the right to say no. Id. at 432. Bostick agreed, and the police found cocaine in one of his bags. Id. At trial, Bostick argued the police had “seized” him, his consent to search his luggage was tainted by an illegal detention, and therefore, the cocaine must be suppressed because it was the fruit of an illegal detention. Id. at 432-33. The Supreme Court rejected Bostick’s claim, holding a reasonable person who had been approached in the same, non-accusatory way as he had would have felt free to refuse the officers’ request to search his luggage. Id. at 439-40.

Texas courts have also considered when a reasonable person would feel free to leave when a police officer approaches him. In Harper v. State, a police officer responded to a call that a woman was passed out in her car in a Walgreen’s parking lot. 217 S.W.3d 672, 674 (Tex. App.—Amarillo 2007, no pet. h). When he arrived, the officer found that EMS was already attending to her. Id. Harper was slow to respond to questions posed to her and was groggy. Id. Concerned about Harper’s ability to drive home safely, the officer asked her to step out of her car. Id. When she did, a bag of methamphetamine fell from her lap to the ground. Id. Harper argued that officer’s request to step out of the car escalated an otherwise consensual encounter to a seizure, but the court rejected her argument, holding the police officer was merely trying to resolve the call he had received and a reasonable person in her situation would have felt free to leave. Id. at 675.

But in Hayes v. State, an officer’s consensual encounter with Hayes escalated to a seizure. An officer observed Hayes, who he had arrested before for selling drugs, crossing the road. 132 S.W.3d 147, 150 (Tex. App.—Austin 2004, no pet.). The officer, thinking Hayes may have had warrants issued for his arrest, initiated a conversation with Hayes and asked for Hayes’ identification. Id. The officer called for backup, and while he ran Hayes’ information, the other officer watched Hayes’ hands, feet, and face to make sure he did not flee and discovered a bag of drugs sticking out of Hayes’ clothing. Id. Because another officer made sure Hayes did not leave, the court held a reasonable person in Hayes’ position would not have felt free to leave, and Hayes had been seized. Id. at 153. The court also held the officer’s suspicion that Hayes may have had warrants issued for his arrest was not a reasonable suspicion to stop Hayes. Id. Therefore, the drugs the officers found on Hayes were suppressed. Id.

Like Harper, the young men were in a parked car when the police approached them. And like the officers in Bostick, the officers merely identified themselves to the young men and asked permission to search their vehicle. Further, the officers did not threaten the young men or point their weapons at them. And unlike the officers in Hayes, prior to the time the young men consented to the search of the vehicle, the officers did not do anything to detain the young men in any way. They merely approached the car, identified themselves, and asked permission to search the car. Without more, a reasonable person in the young men’s situation would have felt free to refuse the officers’ request to search the vehicle. Therefore, the young men had not been seized when the officers asked for permission to search the vehicle, and no violation of their Fourth-amendment rights occurred.

And you asked me whether United States v. Valdez helps the young men. In Valdez, a patrol officer pulled Valdez over because it appeared Valdez’s vehicle registration sticker was out of date and the tint on Valdez’s windows was too dark. 267 F.3d 395, 396-97 (5th Cir. 2001). After the officer saw the vehicle’s registration was not expired and the windows’ tint was not too dark, he ran a criminal history check on Valdez, finding he had been convicted of a felony. Id. He also asked the Valdez if he had any drugs or guns, and Valdez voluntarily surrendered a loaded pistol and a rifle. Id. All parties conceded Valdez had been seized when he was pulled over on a traffic stop. Id. at 397-99. Because Valdez had been seized, the Fifth Circuit considered (1) whether the seizure was “justified at its inception,” that is whether the officer had a reasonable suspicion that Valdez was engaged in criminal activity and (2) whether the scope of the officer’s actions were reasonably related to the “circumstances that justified the stop in the first place.” Id. at 398. Valdez argued that while the he had a reasonable suspicion that Valdez was engaged in criminal activity and lawfully stopped him, the officer exceeded the permissible scope of the stop when, after he learned there were no problems with Valdez’s registration sticker and window tint, he ran a criminal background check on Valdez and questioned Valdez about drugs and weapons. Id. The court agreed and suppressed the weapons. Id. at 398-99.

Unlike Valdez, the young men in this case were never “seized.” Because they were never seized, the police were free to ask them any question or to search the vehicle as long as a reasonable person would have felt free to refuse to answer the officer. And the analysis which resulted in the suppression of the weapons which Valdez had with him does not apply to these young men.

Conclusion:

The young men were never “seized” because a reasonable person who had been sitting in his vehicle, was approached by the police, and was asked whether the police could search his car would have felt free to refuse the police’s request. Therefore, their Fourth-amendment rights were not violated.