reviewing decisions concluding that revocation of consent must be “unequivocal” and holding the same
How later courts described this case
- reviewing decisions concluding that revocation of consent must be “unequivocal” and holding the same
- finding voluntary consent where officers asked “only a few brief questions” in a “conversational tone”
- “Burton maintains that a seizure occurred . . . emphasizing” that the officers were situated as to “block[] the exit of the bus.”
- ‘“[C]onduct withdrawing consent must be an act clearly inconsistent with the apparent consent to search, an unambiguous statement challenging the officer’s authority to conduct the search, or some combination of both” [footnotes omitted]
Written by the judges who cited it.
The opinion
FERREN, Associate Judge,
concurring:
Unless the police have advised a passenger on a bus that the passenger is free to refuse consent to a search of his or her luggage and person, I find it hard to believe that many passengers can legitimately be found to have consented to such a search voluntarily under the applicable, subjective test for consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 , 93 S.Ct. 2041, 2047-48 , 36 L.Ed.2d 854 (1973); In re J.M., 619 A.2d 497, 502-03 (D.C.1992) (en banc). 1 As Judge SCHWELB indicates, the inherently coercive environment makes truly voluntary consent unlikely. Here, however, the trial court found appellant Burton had consented to the searches, and, although I am skeptical about this finding, I must agree that, under the applicable standard of review, the court’s finding cannot be held “clearly erroneous.” See id., at 500 .
Furthermore, I must agree with Judge KING that, under persuasive caselaw, appellant’s initial consent must be deemed continuing, absent an unequivocal withdrawal of consent — for example, by simply saying “no” or walking away. Equivocal gestures, if deemed sufficient for withdrawal of consent, would make consensual searches altogether untenable because the police could never be sure, without continuing inquiry, whether a person had consented to the search or not; as a practical matter, the police would search at their peril even when the suspect at first had unequivocally consented to the search.
In sum, probably the most crucial issue in cases such as this, or so it seems to me, is whether the suspect’s agreement to the search is sufficiently clear to warrant a finding of consent in the first place. Because the very environment of a search on the bus is so fraught with coercion, I believe it is highly questionable for a trial judge to find consent in the absence of a statement by the police to the suspect — as there was in Florida v. Bostick, 501 U.S. 429 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991)—that he or she is free to withhold consent. But, apparently, such a statement is not constitutionally required. See Schneckloth, 412 U.S. at 221 , 93 S.Ct. at 2044-45 ; In re J.M., 619 A.2d at 502-504 ; see also 3 Wayne R. LaFave, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 8.2(i), at 213 (2d ed. 1987). Because I cannot say the trial court clearly erred in *750 finding consent here, the police were entitled to rely on Burton’s consent until he, without question, withdrew it. On this record, the trial court did not clearly err in finding Burton did not do so.
. The question whether a passenger has "consented” to a search is legally distinct from— though in bus search cases it is conceptually very close to — the question whether the bus passenger has been "seized.” See In re J.M., 619 A.2d at 499-501 . The latter question is answered by reference to an objective, reasonable person standard. See Florida v. Bostick, 501 U.S. 429, 438 , 111 S.Ct. 2382, 2388 , 115 L.Ed.2d 389 (1991) ("whether a reasonable person would have felt free to decline the officers’ requests or otherwise terminate the encounter”). Appellant’s seizure is not an issue in this case.