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The protection against unreasonable searches and seizures that the Fourth Amendment provides to all citizens is an awesome one. In order for police to show that a search was "reasonable" and therefore constitutional, they must show not only that there was "probable cause" justifying the search, but also that a warrant for the search has been issued by a neutral and detached judicial officer. And even though the courts have recognized some limited exceptions to the warrant requirement–permitting some searches to occur even though no warrant had been obtained, the limited exceptions to the warrant requirement still do not dispense with the need to have a reasonable belief in the circumstances under which the law permits a search to be conducted.

POLICE PREFER CONSENT SEARCHES

Small wonder that police would prefer to conduct searches with the consent of the suspect. Consent, after all, operates as a waiver of one's Fourth Amendment rights. Consent dispenses with, not only the need to have probable cause justifying the search, but it also dispenses with the need to have a warrant. It simplifies law enforcement to a considerable degree.

Because the constitutional protection is deemed to be such a serious restraint upon police conduct, and because the consequences of waiving one's constitutional rights are so serious for the individual, the Supreme Court has insisted that consent, in order to constitute a valid waiver of rights, be freely and voluntarily given, without coercion or duress exerted by police officers in obtaining the consent.

We readily see, of course, that there is a corollary in constitutional law between freely and voluntarily given consent, and freely and voluntarily given confessions. And freely and voluntarily given confessions, unless volunteered by a suspect, must be preceded by the giving of the Miranda warnings, which include the caution that the person to be interrogated is not obligated to talk, and can indeed elect to remain silent.

This automatically raises the question as to whether the need to freely and voluntarily consent to a search also requires that the person first be warned of his right to withhold consent. Somewhat surprisingly, that is not the case. In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Supreme Court stated that no such explicit warning would be required before a valid consent to search can be obtained. Since consent depends on all of the circumstances of a particular case, however, the Supreme Court was at pains to clarify that whether a suspect knew of his right to withhold consent would be a factor that a trial court could consider in determining whether the consent was freely and voluntarily given.

Why the difference between voluntary confessions and voluntarily given consent, in terms of the needed "warnings of rights"? The Court distinguished the two simply on the basis of the fact that, while both involve Fourteenth Amendment Due Process if the issues arise in state courts, the voluntariness of confessions is derived from the Fifth Amendment protection against self incrimination, whereas the voluntariness of a consent to search is one that is required by the Fourth Amendment. Different amendments, different rules! Does it make sense? Probably not to the non-legalistic mind.

CONSENT BY CONDUCT?

When we think about obtaining someone's consent, we would normally envision talking to someone to ask for permission to conduct a search, and that person then responds by saying "yeah" or "nay." But can consent be given by not saying anything? By acquiescing in police conduct? Sometimes it can, but not always.

For example, the Supreme Court has been rather explicit in saying that mere acquiescence to a claim by the police that they have a right to conduct the search, or that they have a search warrant–even though they don't, will not validate the later search which may occur. In Bumper v. North Carolina, 391 U.S.543, 88 S.Ct. 1788, 20 L.Ed.2d.797 (1968), the Court held that when police waived a piece of paper in front of the occupant of the home, stating that they had a warrant to search the house, and the home owner said, "Go ahead," that statement did not amount to a valid consent when it later turned out the police did not possess such a warrant. The words of the home owner, "Go ahead," rather than amounting to consent to search, constituted merely an acquiescence into an assertion that the police had the right to search regardless of whether the person consented.

What if there is not even a "go ahead" from the suspect, but merely mute acquiescence in the conduct of the officers? Can that amount to consent? To examine that issue, we look to a recent decision of the Illinois Supreme Court in People v. Anthony, ..... N.E.2d ...., 2001 WL 1552631 (Ill., decided December 10, 2001).

THE COMMUNITY POLICING PROGRAM

Samuel Anthony was approached by a Springfield police officer when Anthony was coming out of a building in which he was not a resident. The officer, Jeff Barr, was patrolling the neighborhood on foot as part of a community policing project which had as its purpose "to make contact with the citizens, address any problems, mostly just to be seen." "Walk and talk is basically how it was set up," said Officer Barr. The officers participating in the program would make contact with the inhabitants of a neighborhood, get to know them, discuss every-day affairs, and become known to them as individuals rather than as uniforms.

And that is why, as Barr and his partner were on walking patrol, he knew that Anthony did not live in the building from which he exited that faithful day in June of 1999. When Anthony saw the officers, he turned and started walking in the direction away from the officers. Barr called out to him: "Excuse me, sir. Can I talk to you for a minute?" Anthony turned around and waited for the officers to catch up with him. Barr asked Anthony what he had been doing in that apartment building and whom he knew there, whereupon Anthony answered that he had visited a woman named Robbi in one of the apartments.

While Barr did not place him under arrest or restrain him in any way, he noticed that Anthony was very nervous and put his hands in, and then removed them from, his pants pockets several times. This caused Barr to ask Anthony if he would please keep his hands out of his pockets while they were talking, for the officer's peace of mind in their own safety. Anthony complied, whereupon Barr asked if Anthony had anything on his person that he shouldn't have, like "guns, drugs, knives, anything that could hurt me or my partner." Anthony responded in the negative.

Now we come to the crucial part of the scenario. So far, the officer had not had any physical contact with the suspect, who had not attempted to flee, and appeared neither to be intoxicated or under the influence of drugs. Anthony also had not engaged in any criminal activity as far as Officer Barr knew, and did not know of any past criminal behavior of the person whom he was facing. Those were the facts as they stood when Officer Barr next asked whether Anthony would consent to a search of his person. Anthony did not answer, instead, in the words of Officer Barr, "He spread his legs apart and put his hands on top of his head; assuming the position is I guess the best way to describe it." The officer searched Anthony and came up with a rock of cocaine. Defendant was charged with possession and later moved to suppress the evidence. The trial court, hearing Officer Barr's testimony, granted the defendant's suppression motion on the ground that the "stop" of Anthony by Officer Barr was not an investigatory stop sanctioned under Terry v. Ohio, nor was there any reasonable and articulable suspicion of wrongdoing on Anthony's part.

On appeal, the Appellate Court, in an unpublished opinion, reversed the trial court, stating that the encounter between the officers and Barr was not one to which the Fourth Amendment applied at all. It was simply a consensual encounter on the street without any restraint or duress as part of the community caretaking program officers. They were simply attempting to get to know the individual, which was the main purpose of the project. And when the request to allow a search was made, Anthony, by his non-verbal conduct, gave his consent.

The Illinois Supreme Court disagreed with this characterization of the facts, and reversed the appeals court, upholding the trial court's suppression order.

SUPREME COURT'S REASONING

The Illinois Supreme Court began its analysis of the law by discussing the "standard of review." This is a legal concept that is not easily understood by non-lawyers, and yet one must be aware of it to understand the reasons why a court reversed or affirmed a lower court decision.

On appeal, reviewing courts may be asked to decide two different kinds of issues: factual issues that depend entirely upon the credibility of witnesses who testified at trial or before a trial judge at a hearing on a motion to suppress; and the legal conclusions that are drawn from the facts.

In reviewing the facts, the appeals court will give great deference to the credibility assessments made by the trial judge, and reverse these findings only if they were "manifestly erroneous." This is a standard which requires the reviewing court to conclude, before it will reverse a fact finding, that no reasonable fact finder could have interpreted the evidence in the manner in which the trial court interpreted it. Thus, factual findings of the lower court, based as they are on the judge having observed the witness' demeanor while testifying, are rarely reversed on appeal.

If the facts are not in dispute, however, and if the only issues needing to be addressed are legal conclusions drawn from undisputed facts, than the reviewing court can decide those issues de novo (anew) without any deference to how the lower court may have interpreted the facts. And that was the position in which the Illinois Supreme Court found itself. The facts were undisputed. Officer Barr testified truthfully to what had happened and no one contends the picture he painted was different from what happened. Thus, it is only the legal conclusion to be drawn from these facts that is contested between the parties. Was this a valid consent search? The court held it was not.

After discussing some of the basic premises of Fourth Amendment consent law with which we started our article, the court came to the crucial fact of non-verbal consent. Can mere conduct ever be construed as a consent that the police may conduct a search of the person? To that question the court gave a cautious "Yes" answer. But was the purported consent by non-verbal conduct in this case sufficient to waive the protections of the Fourth Amendment? That question was answered in the negative. After recognizing that the burden of proving valid consent is on the prosecution – and not on the defendant – the court stressed that, in the case of non-verbal consent, such consent cannot be taken as "valid consent" in the constitutional sense by mere acquiescence to a claim of lawful authority [citing the Bumper case.] The reason, said the court, is "In the case of non-verbal 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." Was the defendant's "assuming the position" an ambiguous gesture, or a clear surrender of his rights? This is how the court saw the facts:

"Here, uniformed officers Barr and Stapleton first contacted the defendant from 50 feet away, calling to him down an alley. Officer Barr asked the defendant about his business in the area and whom he knew in the apartment complex. Although Officer Barr did not threaten the defendant, the defendant's apprehension was apparent. According to Officer Barr the defendant's voice stuttered, his hands shook, and he reached into and out of his pants pockets. Officer Barr became concerned and requested that the defendant keep his hands out of his pockets. After the defendant complied, Officer Barr continued to question the defendant by inquiring whether the defendant 'had anything on him that he shouldn't have, anything like guns, drugs, knives, anything that could hurt me or my partner.' The defendant replied no, but Officer Barr still asked for consent to search the defendant's person. The defendant then 'assumed the position' of an arrestee: he spread 'his legs apart and put his hands on top of his head.'

"The State would have us draw an inference from these facts that the defendant intended to consent, not acquiesce. An equally valid inference from the defendant's ambiguous gesture is that he submitted and surrendered to what he viewed as the intimidating presence of an armed and uniformed police officer who had just asked a series of subtly and increasingly accusatory questions. . . . Considering the totality of the undisputed facts in this case, the State failed to establish that the defendant voluntarily consented to a search of his person. The trial court correctly suppressed the cocaine." The assuming of the position was the equivalent, the court held, of saying "do what you have to do," words that in the case of United States v. Giuliani, 481 F.Supp. 212 (N.D.Ill. 1984) were deemed not to constitute a valid consent.

Was Officer Barr justified in asking for consent to search? Absolutely! If he had obtained, from defendant, a clear and unequivocal verbal agreement, chances are that consent would have been upheld as valid. It is just that when dealing with non-verbal conduct, courts tend to require more than "mere acquiescence."

THERE WAS A DISSENT

It should be noted that Justice Robert Thomas dissented. He would have affirmed the appellate court's reversal of the suppression order. In fact, he saw the circumstances in the Giuliani case, and in several other cases that had held non-verbal conduct to be insufficient to indicate consent, as very different from this situation. In all of these other cases that he discussed, Justice Thomas found there was other evidence, besides non-verbal conduct, whereby the defendants had already clearly indicated non-consent prior to engaging in the conduct supposedly indicating consent. Note that the issues to be resolved in cases like Anthony are very much driven by the particular facts of each individual case. The general constitutional principles that apply to the giving of a valid consent are clear; their application to the specific circumstances of an individual case frequently is not so clear.

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