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Consent Involuntary When Exit Blocked

Police in a high-crime area who followed a car with four African-American occupants and out-of-state tags onto private property and blocked the car’s exit, then questioned the driver and asked him to lift his shirt and consent to a pat-down, violated the driver’s Fourth Amendment rights, and the 4th Circuit reverses the district court’s refusal to suppress a firearm and marijuana found by police.

The district court denied defendant’s motion to suppress this evidence, reasoning that the initial encounter – prior to the discovery of the traffic violation – was consensual and therefore did not infringe on defendant’s Fourth Amendment rights. Because a reasonable person in defendant’s position would not have felt free to terminate the initial encounter with the officers, we must reverse.

That this was not a routine encounter, but one targeted at defendant seems to us particularly significant given that the officers blocked in defendant’s car to effectuate the encounter. The court found that the police had seized not only the passenger who remained in the car but also the driver who had left it. This holding comports with that of numerous other courts considering similar facts. We agree that when an officer blocks a defendant’s car from leaving the scene, particularly when, as here, the officer has followed the car, the officer demonstrates a greater show of authority than does an officer who just happens to be on the scene and engages a citizen in conversation.

Further, when the officers approached defendant, they did not ask if they could speak with him.

Under the circumstances of this case, we conclude a reasonable person would not have felt free to walk away and ignore the officer’s nearly immediate “requests” that the person lift his shirt and then submit to a pat down search. Although the uniformed officers did not draw their holstered weapons or use a threatening tone, these circumstances would suggest to a reasonable person that the officers were not treating the encounter as routine, but were targeting defendant because he was engaged in “illegal activity.”

Reversed and remanded.

U.S. v. Jones (Motz) No. 11-4268, May 10, 2012; USDC at Richmond, Va. (Payne) Nia A. Vidal, FPD; Erik S. Siebert, AUSA. VLW 012-2-108, 19 pp.

VLW 012-2-108

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