Petition for Writ of Certiorari — Gerand Earl Ratcliff, Petitioner v. United States

Supreme Court briefJul 10, 2018

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No. ________________

In The Supreme Court of the United States

GERAND RATCLIFF,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

KEVIN L. BUTLER

Federal Public Defender

Northern District of Alabama

ALLISON CASE

Assistant Federal Defender

TOBIE J. SMITH*

Research & Writing Attorney

*Counsel of Record

505 20th Street North

Suite 1425

Birmingham, Alabama 35203

205-208-7170

Counsel for Petitioner

QUESTION PRESENTED

In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973), the Court

stated that “whether a consent to a search was in fact ‘voluntary’ . . . is a question of

fact to be determined from the totality of all the circumstances.” 412 U.S. at 227, 93

S. Ct. at 2047–48. Schneckloth did not concern the standard governing appellate

review of voluntariness determinations, but many federal courts of appeals and state

courts of last resort have taken the Court’s “question of fact” characterization to mean

that voluntariness should be reviewed with the same deference as other findings of

fact. Many other courts disagree, noting that the deference of clear-error review is

inconsistent with the independent review the Court has prescribed for other factintensive determinations affecting constitutional rights, including the voluntariness

of a suspect’s confession. And courts on both sides of the divide have handled the

matter inconsistently.

This split of authority is intractable and longstanding, with some courts

explicitly stating that Schneckloth will bind them to their current approaches until

the Court resolves the matter. Mr. Ratcliff petitions for a writ of certiorari to address

this question:

Is the voluntariness of consent to search a question of fact that is subject to the

same deferential review as findings of historical fact?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

Question Presented......................................................................................................... i

List of Parties .................................................................................................................. i

Table of Contents ........................................................................................................... ii

Table of Authorities ...................................................................................................... iv

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional Provision Involved ................................................................................ 1

Introduction ................................................................................................................... 2

Statement of the Case ................................................................................................... 4

Reasons for Granting the Petition .............................................................................. 10

Federal and state appellate courts are deeply divided over how to

review Fourth Amendment determinations regarding voluntariness

of consent to search...................................................................................... 10

II.

Fact-intensive determinations involving Fourth and Fifth

Amendment rights are traditionally reviewed de novo ........................ 16

The Court requires de novo review of determinations of

probable cause and reasonable suspicion to justify searches

and seizures....................................................................................... 16

The Court requires de novo review of determinations of the

voluntariness of a suspect’s statement under the Fifth

Amendment ....................................................................................... 18

The Court in Schneckloth v. Bustamonte described the

voluntariness of consent to a search as a question of fact .................... 19

The Court should grant certiorari in this case to decide the proper

standard of review for determinations of the voluntariness of

consent ......................................................................................................... 21

The lower courts will remain hopelessly divided on this matter

until the Court authoritatively decides it ............................................. 21

This case is an ideal vehicle for the Court to decide the proper

standard of review .................................................................................. 23

Conclusion .................................................................................................................... 26

Memorandum Opinion and Order of District Court.................................... Appendix A

Opinion of Court of Appeals ......................................................................... Appendix B

iii

TABLE OF AUTHORITIES

Federal and State Cases

Page(s)

Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788 (1968) ........................... 3, 25

Campbell v. State, 339 P.3d 258 (Wyo. 2014) ....................................................... 11 n.1

Commonwealth v. Gray, 990 N.E.2d 528 (Mass. 2013) ........................................ 11 n.1

Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761 (1966) ............................. 18–19

Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006) ....................................... 11

In re J.M., 619 A.2d 497 (D.C. 1992)................................................... 11 n.1, 19–20, 22

Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967) .......................................... 10

Knight v. State, 690 A.2d 929 (Del. 1996) ............................................................. 11 n.1

Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445 (1985) .......................................... 17–18

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) .................................... 18, 20

Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657 (1996) ................ 3, 16–17, 24

People v. Chavez-Barragan, 379 P.3d 330 (Colo. 2016) ............................ 13 n.2, 14 n.3

People v. Luedemann, 857 N.E.2d 187 (Ill. 2006) ................................................. 11 n.1

People v. Monterroso, 101 P.3d 956 (Cal. 2004) .................................................... 11 n.1

People v. Smith, 827 N.E.2d 444 (Ill. 2005) .......................................................... 11 n.1

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973) ............. i, 2–3, 19–26

State v. Artic, 786 N.W.2d 430 (Wisc. 2010) ......................................................... 13 n.2

State v. Butler, 302 P.3d 609 (Ariz. 2013) ....................................................... 11 n.1, 19

State v. Diede, 795 N.W.2d 836 (Minn. 2011) ....................................................... 11 n.1

State v. Jenkins, 3 A.3d 806 (Conn. 2010) ...................................................... 11 n.1, 19

State v. LaBarre, 992 A.2d 733 (N.H. 2010) ......................................................... 11 n.1

State v. Moore, 154 P.3d 1 (Kan. 2007) ........................................................... 11 n.1, 19

State v. Moore, 318 P.3d 1133 (Or. 2013).............................................................. 13 n.2

State v. Nadeau, 1 A.3d 445 (Me. 2010) ................................................................ 13 n.2

State v. Phillips, 577 N.W.2d 794 (Wisc. 1998) .......................................................... 23

State v. Shelton, 990 A.2d 191 (R.I. 2010) ............................................................ 13 n.2

State v. Thurman, 846 P.2d 1256 (Utah 1993) ..................................................... 13 n.2

State v. Tyler, 870 N.W.2d 119 (Neb. 2015) .......................................................... 13 n.2

State v. Varie, 26 P.3d 31 (Idaho 2001) ................................................................. 11 n.1

State v. Weisler, 35 A.3d 970 (Vt. 2011) ........................................ 13 n.2, 14 n.3, 22–23

State v. Wilson, 367 A.2d 1223 (Md. 1977) ........................................................... 13 n.2

State v. Yong Shik Won, 372 P.3d 1065 (Haw. 2015) ........................................... 13 n.2

Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457 (1995)......................................... 23

United States v. Arias-Robles, 477 F.3d 245 (5th Cir. 2007)...................................... 15

United States v. Asibor, 109 F.3d 1023 (5th Cir. 1997) ........................................ 14 n.3

United States v. Brown, 563 F.3d 410 (9th Cir. 2009).......................................... 11 n.1

United States v. Carter, 300 F.3d 415 (4th Cir. 2002) .......................................... 14 n.3

United States v. Casey, 825 F.3d 1 (1st Cir. 2016) ............................................... 14 n.3

United States v. Givan, 320 F.3d 452 (3d Cir. 2003) ............................................ 11 n.1

United States v. Isiofia, 370 F.3d 226 (2d Cir. 2004) ........................................... 11 n.1

United States v. Jones, 614 F.3d 423 (7th Cir. 2010) ........................................... 14 n.3

United States v. Lattimore, 87 F.3d 647 (4th Cir. 1996) ...................................... 14 n.3

United States v. Lee, 793 F.3d 680 (6th Cir. 2015) ....................... 11 n.1, 14 n.3, 19, 22

United States v. Lewis, 921 F.2d 1294 (D.C. Cir. 1990) ............................................. 15

United States v. Magness, 69 F.3d 872 (8th Cir. 1995) ........................................ 13 n.2

United States v. Moon, 513 F.3d 527 (6th Cir. 2008) ........................................... 13 n.2

United States v. Perales, 886 F.3d 542 (5th Cir. 2018) ........................................ 14 n.3

United States v. Quintero, 648 F.3d 660 (8th Cir. 2011) ...................................... 11 n.1

United States v. Raibley, 243 F.3d 1069 (7th Cir. 2001) ............................................ 19

United States v. Ratcliff, --- F. App’x ---, 2018 WL 1081208 (11th Cir. Feb. 28,

2018).......................................................................................................................... 1

United States v. Robertson, 736 F.3d 677 (4th Cir. 2013) .............................. 14 n.4, 19

United States v. Spivey, 861 F.3d 1207 (11th Cir. 2017).......................... 11 n.1, 15, 19

United States v. Thompson, 524 F.3d 1126 (10th Cir. 2008) ..................................... 19

United States v. Valdez, 931 F.2d 1448 (11th Cir. 1991) ..................................... 14 n.4

United States v. Wade, 400 F.3d 1019 (7th Cir. 2005) ......................................... 14 n.3

United States v. Weidul, 325 F.3d 50 (1st Cir. 2003) ........................................... 14 n.3

United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010) ....................................... 11 n.1

United States Code

Page(s)

28 U.S.C. § 1254(1) ........................................................................................................ 1

Constitutional Provisions

Page(s)

U.S. Const. amend. IV ..........................................................................................passim

U.S. Const. amend. V....................................................................................... 18, 20–21

Secondary Sources

Page(s)

4 Wayne R. LaFave, Search & Seizure § 8.1 (5th ed. 2017) ................................. 10–11

4 Wayne R. LaFave, Search & Seizure § 8.2 (5th ed. 2017) ................................... 3, 11

4 Wayne R. LaFave, Search & Seizure § 8.2(a) (5th ed. 2017) .................................. 25

6 Wayne R. LaFave, Search & Seizure § 11.7(c) (5th ed. 2017) ................................. 23

vii

PETITION FOR A WRIT OF CERTIORARI

Gerand Ratcliff respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The district court’s memorandum opinion and order denying Mr. Ratcliff’s

motion to suppress with regard to physical evidence and granting the motion with

regard to certain statements are unpublished, and they are included in Appendix A.

The Eleventh Circuit’s decision affirming the district court’s judgment, United

States v. Ratcliff, --- F. App’x ---, 2018 WL 1081208 (11th Cir. Feb. 28, 2018), and its

order denying Mr. Ratcliff’s petition for panel rehearing are unreported, and they are

included in Appendix B.

JURISDICTION

The United States Court of Appeals for the Eleventh Circuit affirmed Mr.

Ratcliff’s conviction on February 28, 2018, and denied his petition for panel rehearing

on April 11, 2018. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Constitution provides,

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

INTRODUCTION

Mr. Ratcliff signed a handwritten consent-to-search form after watching police

roam freely throughout his house for over an hour with neither a warrant nor consent.

During that time, they confronted him with incriminating evidence and questioned

him about it. Some officers disappeared from his view for lengthy periods. After

receiving his consent, the police searched the home further, and their observations

formed much of the basis for their subsequent application for a search warrant.

Police depend heavily on consent to justify searches that otherwise would

require probable cause and, in many cases, warrants. Yet the federal courts of appeals

and state courts of last resort are hopelessly divided over the correct standard for

reviewing determinations of whether consent to a search was voluntary. Individual

courts regularly apply different standards of review from case to case, often without

giving a reason for the inconsistency or even acknowledging it.

The courts that review the voluntariness of consent as a question of fact,

reversible only for clear error, often cite this Court’s statement in Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973), that “the question whether a consent

to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or

implied, is a question of fact to be determined from the totality of all the

circumstances.” 412 U.S. at 227, 93 S. Ct. at 2047–48. The question before the Court

in Schneckloth, however, was how a trial court should evaluate voluntariness—

specifically, whether the government must show “knowledge of the right to refuse

consent,” id. at 249, 93 S. Ct. at 2059. Noting the limited nature of Schneckloth’s

holding, many other courts have held that the proper standard of appellate review is

de novo.

Voluntariness of consent is one of the most frequently contested Fourth

Amendment questions, yet for decades the standard of review for those questions has

sharply divided the nation’s appellate courts. Even as police “increasingly . . . rely

upon purported ‘consents’” as the entire justification for searches, 4 Wayne R.

LaFave, Search & Seizure § 8.2 (5th ed. 2017), deferential review of trial courts’

conclusions limits the ability of “appellate courts . . . to maintain control of, and to

clarify, the legal principles” governing the validity of police methods, Ornelas v.

United States, 517 U.S. 690, 697, 116 S. Ct. 1657, 1662 (1996).

Mr. Ratcliff’s case is an excellent vehicle for the Court to resolve this split of

authority. The voluntariness of his consent in the midst of police officers’ extended,

warrantless intrusion in his house was crucial to the validity of the search warrant

they subsequently obtained. This Court has stated that consent must be “the product

of an essentially free and unconstrained choice by its maker,” Schneckloth, 412 U.S.

at 225, 93 S. Ct. at 2047, not mere “acquiescence to a claim of lawful authority,”

Bumper v. North Carolina, 391 U.S. 543, 549, 88 S. Ct. 1788, 1792 (1968). But in

reviewing the district court’s application of those principles, the Eleventh Circuit

gave “‘a great deal of deference’ to” the district court’s voluntariness finding, Pet. App.

58a, and affirmed because it did not have “a ‘definite and firm conviction that the

trial judge erred’ in finding that Ratcliff’s consent was voluntary,” id. (quoting United

States v. Garcia, 890 F.2d 355, 359 (11th Cir. 1989)). The Court should grant

certiorari to resolve the enduring conflict as to the proper standard of appellate

review.

STATEMENT OF THE CASE

1. Federal Criminal Charges. Gerand Ratcliff was indicted in the Northern

District of Alabama on counts of possession of cocaine with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); possession of a firearm in furtherance

of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A); and possession of

a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Doc. 28 (superseding

indictment); see also Doc. 10 (initial three-count indictment).

2. Proceedings in District Court. Mr. Ratcliff moved to suppress

statements he made to police and physical evidence seized from his house. The

district court held evidentiary hearings on the motion and suppressed certain

statements of Mr. Ratcliff’s but held that all physical evidence was admissible. Mr.

Ratcliff entered a conditional guilty plea to all three counts, reserving the right to

appeal the partial denial of his motion to suppress, and he was sentenced to 120

months’ imprisonment.

3. Statement of the Facts. On November 3, 2015, a car dealership contacted

OnStar, a remote-access system, to report a cream-colored Cadillac Escalade as

stolen. An OnStar agent remotely accessed the vehicle’s GPS coordinates, which

placed it in Pleasant Grove, Alabama. The agent called the Pleasant Grove Police

Department to report what she had learned.

Three uniformed Pleasant Grove police officers went to the address OnStar

provided, a single-residence property where Mr. Ratcliff lived. They arrived at the

house at 5:49 p.m. The officers testified that they planned to conduct a “knock and

talk.” Two of them, Corporal Duane Martin and Officer Kendal Coker, walked up a

driveway to the right side of the house and looked into Mr. Ratcliff’s basement garage

through a window in the garage door. Inside, they saw a vehicle that they believed to

be a cream-colored Escalade. The third officer, Samuel Powell, walked across the

front lawn to the left side of the house, where he could see inside through a window.

After looking in the garage, Corporal Martin approached Mr. Ratcliff’s front

door. Officer Coker remained in the driveway. Corporal Martin knocked on the front

door and announced, “Police Department.” Doc. 25 at 100. He heard footsteps

approach the door, then a voice mumble something Corporal Martin could not discern.

He next heard footsteps moving away from the door, first walking and then running.

On the left side of the house, Officer Powell also heard the sound of running footsteps

and “saw a blur go by.” Id. at 49. The officers watched for a person coming out of the

house, but no one did, and after about 30 seconds, Mr. Ratcliff opened the front door.

Corporal Martin immediately grabbed Mr. Ratcliff’s arm and pulled him to the

floor as Officers Coker and Powell came up onto the front porch to assist. All three

officers testified that they smelled a strong odor of raw marijuana when the door

opened. Officer Coker handcuffed Mr. Ratcliff, and at 5:59 p.m. an officer radioed a

dispatcher to say that Mr. Ratcliff had been detained.

Corporal Martin and Officer Powell performed a protective sweep of the house

to see if anyone else was inside. No one was, but during the sweep they saw a pill

bottle with no label sitting on a bedroom nightstand, the butt of a pistol sticking out

from between a mattress and box springs, and, floating in a toilet, a piece of raw

marijuana. After about two minutes, they finished the sweep in the basement garage,

again seeing the Escalade, then returned to the front door to inform Officer Coker

that the house was clear.

Mr. Ratcliff still lay on the floor in handcuffs. The officers moved him into a

seated position in the front doorway and asked him about the Escalade and the

marijuana smell. He told them the Escalade belonged to a friend and was not his. He

said a small bag of marijuana in the kitchen was the source of the marijuana odor,

but the officers did not find a bag of marijuana.

Officer Powell had a key to the Escalade—he testified that he did not recall

how he got it—and he and Corporal Martin returned to the basement, leaving Officer

Coker with Mr. Ratcliff. They checked registration information for the vehicle, but

both the vehicle identification number (“VIN”) and the license plate number were

legally registered to a vehicle that was owned by a woman in Montgomery, Alabama,

and had never been reported stolen. Officer Powell opened the driver’s door, sat down,

and pushed a button to speak with an OnStar agent. The agent remotely activated

the Escalade’s alarm, headlights, and horn. The officers testified that they were not

sure how long they were in the garage, but they allowed that it might have been 20

to 30 minutes. When they were done, they rejoined Officer Coker at the front door,

and one of the officers called Pleasant Grove narcotics detective Andy Reed to ask

him to come to the house. He arrived about ten minutes later, around 6:30 or 6:40

p.m. Mr. Ratcliff still sat in the doorway.

Detective Reed testified that he also smelled a strong odor of marijuana as he

approached the house. When he entered, the officers moved Mr. Ratcliff to a sofa in a

room at the front of the house. Detective Reed sat down beside him and asked him

about the marijuana smell. Mr. Ratcliff said that he had flushed about an ounce of

marijuana down the toilet when he first saw police outside.

While Detective Reed questioned Mr. Ratcliff, Corporal Martin went back to

the bedroom where he had seen a pistol earlier. He cleared it of ammunition and, at

6:57 p.m., radioed the gun’s serial number to a dispatcher.

Detective Reed also talked to Mr. Ratcliff, who was still handcuffed, about

consenting to a search of his house. He testified, “I basically asked for consent,

[‘]either you can give me permission to search your residence because I’m here

because of the way your house smells, or I can go find a judge, get a search warrant,

and then I’ll come back and then we will do that.[’]” Doc. 34 at 244.

Mr. Ratcliff said he would consent, and Detective Reed went outside to his

truck to look for a pre-printed consent-to-search form. He was unable to find one, so

he hand-wrote a statement giving Pleasant Grove police permission to search the

house for illegal narcotics and related items. Detective Reed removed Mr. Ratcliff’s

handcuffs, and both of them signed the paper and recorded the time as 7:05 p.m.

Detective Reed put handcuffs back on Mr. Ratcliff and began what he described

as a walk-through of the house, which he estimated lasted between 10 and 30

minutes. He picked up the unlabeled pill bottle and inspected its contents. He

recognized them as hydrocodone pills, an opioid medication. He opened dresser

drawers and saw plastic baggies and two digital scales.

Detective Reed also saw a large safe in a bedroom closet and suspected that it

might contain marijuana. He asked Mr. Ratcliff whether the safe contained

marijuana, or guns, or a million dollars, and Mr. Ratcliff said no each time. He then

asked whether the safe contained $100,000. Mr. Ratcliff said yes and told Detective

Reed that he would split the money with him if Detective Reed would allow him to

leave. The offer made Detective Reed suspicious that there might be more drugs in

the house. He had Mr. Ratcliff open the safe and saw a large amount of cash inside.

Mr. Ratcliff again offered half of it to him.

Detective Reed then spoke with Corporal Martin and Officers Coker and

Powell, and “I basically said, [‘]okay, we’re done.[’]” Id. at 254. He explained,

“[N]othing against my handwritten [consent form], but I just felt more comfortable

going ahead and getting a search warrant . . . .” Id.

Detective Reed drafted two alternative affidavits in support of the

application—one “based on the marijuana floating in the toilet,” and one “for the pills

sitting on the nightstand” that he had identified during his post-consent walkthrough. Id. at 256. He presented both to a judge to “allow him to determine which

one was the stronger between the two,” and the judge issued a warrant based on “the

[affidavit] with the pills . . . .” Id. Near the end, the affidavit stated, “Said

Hydrocodone and evidence will support Ratcliff’s involvement in illegal activities,

more specifically illegal drug activities . . . .” Gov’t Ex. 8 at 3.

Police returned to the house to execute the search warrant later that night.

They seized the pill bottle; two pistols; a shotgun; ammunition magazines; two

packages containing about a kilogram of cocaine apiece; several digital scales; a food

vacuum sealer; kilogram wrappers with white powder residue; and approximately

$247,460 in cash.

4. Appeal to Eleventh Circuit. Mr. Ratcliff appealed his convictions to the

Eleventh Circuit, arguing that the district court erred in denying his motion to

suppress the physical evidence seized from his house. Among other grounds for

reversal, he argued that his consent “was not voluntary and was irredeemably tainted

by the Fourth Amendment violations that preceded it.” Ratcliff Initial Br. 43.

The Court of Appeals affirmed. It held that officers’ pre-consent actions were

justified both to prevent imminent destruction of evidence and as a protective sweep

to ensure officer safety. Pet. App. 55a–57a. The court also affirmed the district court’s

determination that Mr. Ratcliff’s consent was voluntary, stating, “When a district

court finds that consent was voluntarily given, we give ‘a great deal of deference’ to

that finding. We will disturb such a finding ‘only if we are left with the definite and

firm conviction that the trial judge erred.’” Id. at 58a (citations omitted) (quoting

United States v. Garcia, 890 F.2d 355, 359 (11th Cir. 1989)). And having held that

none of the information in the warrant affidavit was obtained in violation of the

Fourth Amendment, the court held that the warrant was valid. Id. at 59a–60a.

REASONS FOR GRANTING THE PETITION

Federal and state appellate courts are deeply divided over how to

review Fourth Amendment determinations regarding voluntariness

of consent to search.

This Court “‘[o]ver and again . . . has emphasized’ . . . that searches conducted

outside the judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few specifically

established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 356,

88 S. Ct. 507, 514 (1967) (footnotes omitted) (quoting United States v. Jeffers, 342

U.S. 48, 51, 72 S. Ct. 93, 95 (1951)). Yet it is surpassingly common for police officers

to inspect citizens’ “persons, houses, papers, and effects,” U.S. Const. amend. IV, with

neither a prior nor a subsequent judicial determination of probable cause, because

they elicit individuals’ consent.

That by itself is not necessarily a Fourth Amendment problem. “The practice

of making searches by consent is not a disfavored one,” 4 Wayne R. LaFave, Search

& Seizure § 8.1 (5th ed. 2017), and it is an appealing option for police, for several

reasons. Since an officer may ask for consent whether he has probable cause or not,

doing so can open the door to a search—literally, in many cases—where it otherwise

would remain closed. See id. And because consent will avoid later inquiry into

probable cause or other justification, police may regard “the consent search . . . as the

‘safest’ course of action in terms of minimizing the risk of suppression.” Id. Certainly,

obtaining consent on the spot is less of a hassle than securing a warrant, see id., and

it might also be easier; this Court has noted the “substantial number of instances in

which suspects who are asked for permission to search actually consent, albeit

imprudently,” Georgia v. Randolph, 547 U.S. 103, 122, 126 S. Ct. 1515, 1528 (2006).

Experience has taught police that after a consent search, “absent extraordinary

circumstances, chances are that a court . . . will conclude that the consent was valid

. . . .” 4 LaFave, Search & Seizure § 8.2 (quoting Marcy Strauss, Reconstructing

Consent, 92 J. Crim. L. & Criminology 211, 212 (2002)). So it is unsurprising that

“police . . . have increasingly come to rely upon purported ‘consents’ as the basis upon

which wholesale searches are undertaken without probable cause and upon no or

minimal suspicion.” Id.

To justify a search, consent must be voluntarily given, and with the presentday profusion of consent searches, the voluntariness of a person’s consent is a

frequent subject of criminal litigation. Even so, this Court has never prescribed a

standard of appellate review of trial courts’ voluntariness determinations, and federal

courts of appeals and state courts of last resort have been unable to reach consensus

on their own. Many federal and state courts have held that voluntariness is a factual

conclusion that is reviewed only for clear error on appeal, 1 even though that differs

1 See United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004) (“[W]e review the

District Court’s conclusions on the voluntariness of Isiofia’s consents for clear error.”);

United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (“The district court’s

determination that [a person’s] consent was voluntary was a determination of fact

subject to review on a clear error basis.”); United States v. Lee, 793 F.3d 680, 684 (6th

Cir. 2015) (“We will . . . review the question of consent under the ‘clear error’

standard.”); United States v. Quintero, 648 F.3d 660, 665 (8th Cir. 2011) (“The

voluntariness of a consent to search is a factual question that is reviewed for clear

error.” (quoting United States v. Johnson, 619 F.3d 910, 918 (8th Cir. 2010))); United

States v. Brown, 563 F.3d 410, 414 (9th Cir. 2009) (“We review for clear error a district

court’s determination of the voluntariness of a defendant’s consent to a search.”

(quoting United States v. Todhunter, 297 F.3d 886, 891 (9th Cir. 2002))); United

States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017) (“Voluntariness is ‘a question

of fact’ that we may disturb only if clearly erroneous.” (citations omitted) (quoting

Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2048)); United States v. Wilson, 605 F.3d

985, 1027 (D.C. Cir. 2010) (“Since this inquiry is factually intensive, we will reverse

a district court’s determination that consent was voluntary only for clear error.”);

State v. Butler, 302 P.3d 609, 613 (Ariz. 2013) (en banc) (“Voluntariness is a question

of fact, and ‘[w]e review the trial court’s voluntariness finding for abuse of discretion.’”

(quoting State v. Cota, 272 P.3d 1027, 1035 (Ariz. 2012))); People v. Monterroso, 101

P.3d 956, 967–68 (Cal. 2004) (“Our review of the trial court’s implied finding that

defendant voluntarily consented to the search is limited. . . . ‘On appeal . . . the trial

court’s findings . . . must be upheld if supported by substantial evidence.’” (quoting

People v. James, 561 P.2d 1135, 1139 (Cal. 1977))); State v. Jenkins, 3 A.3d 806, 833

n.33 (Conn. 2010) (“[W]e continue to apply the clearly erroneous standard of review

to trial courts’ determinations with respect to the voluntariness of consents to

search.”); Knight v. State, 690 A.2d 929, 932 (Del. 1996) (“The trial judge’s

determination that a defendant’s consent was voluntary will not be set aside on

appeal unless that finding is clearly erroneous.”); In re J.M., 619 A.2d 497, 501 (D.C.

1992) (“[W]e [are] ‘bound to uphold the trial court’s finding that a search was

consensual unless such a finding is clearly erroneous.’” (quoting Kelly v. United

States, 580 A.2d 1282, 1288 (D.C. 1990))); State v. Varie, 26 P.3d 31, 35 (Idaho 2001)

(“The district court’s determination that Varie’s consent was freely and voluntarily

given is supported by the evidence and is not clearly erroneous.”); People v. Smith,

827 N.E.2d 444, 452 (Ill. 2005) (“[W]e review the circuit court’s finding of fact that

defendant’s consent to the pat-down search was voluntary to determine if it is against

the manifest weight of the evidence.”), abrogated on other grounds by People v.

Luedemann, 857 N.E.2d 187, 199 (Ill. 2006); State v. Moore, 154 P.3d 1, 13 (Kan.

2007) (“[V]oluntariness of a consent to search is a question of fact to be determined

from all the circumstances. . . . Given our limited standard of review on this issue, we

determine that substantial competent evidence . . . supports the district court’s

factual finding that Moore’s consent to search was voluntary.”); Commonwealth v.

Gray, 990 N.E.2d 528, 540 (Mass. 2013) (“[A] finding of voluntariness . . . should not

be reversed absent clear error by the judge.” (quoting Commonwealth v. Carr, 936

N.E.2d 883, 890 (Mass. 2010))); State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011)

(“[T]he ‘clearly erroneous’ standard controls our review of a district court’s finding of

voluntary consent.”); State v. LaBarre, 992 A.2d 733, 740 (N.H. 2010) (“We will

disturb the trial court’s finding of consent only if it is not supported by the record.”

(quoting State v. Watson, 864 A.2d 1095, 1098 (N.H. 2004))); Campbell v. State, 339

P.3d 258, 265 (Wyo. 2014) (“Whether consent is voluntary is a question of fact . . . .

from the approach this Court requires for other, similarly fact-intensive Fourth

Amendment determinations. But many other courts treat voluntariness as a mixed

question of law and fact and review it de novo. 2 And quite a few courts do not fit easily

We will not disturb a district court’s resolution of that factual issue unless . . . we

conclude that it is clearly erroneous.”).

2 See United States v. Moon, 513 F.3d 527, 536 (6th Cir. 2008) (“While we review the

determination of the ultimate question of whether there was consent de novo, we

must afford due weight to the factual inferences and credibility determinations made

by the district court.”); United States v. Magness, 69 F.3d 872, 874 (8th Cir. 1995)

(“We review the ultimate question of voluntariness de novo but uphold the district

court’s factual findings unless they are clearly erroneous.”); People v. ChavezBarragan, 379 P.3d 330, 338 (Colo. 2016) (In determining voluntariness of consent,

“we review the trial court’s findings of historic fact deferentially, accepting them if

they are supported by competent record evidence, but we review the legal effect of

those facts de novo.”); State v. Yong Shik Won, 372 P.3d 1065, 1076 (Haw. 2015)

(“[T]he ultimate issue of whether the defendant provided ‘consent’ is reviewed de

novo.”); State v. Nadeau, 1 A.3d 445, 454 (Me. 2010) (“The ultimate question of

whether the facts, as found, establish that an individual consented to the ensuing

search and seizure is a distinctly legal question that we will review de novo.”); State

v. Wilson, 367 A.2d 1223, 1231 (Md. 1977) (“On appeal, we examine the entire record

and make an independent determination of the ultimate issue of voluntariness.”);

State v. Tyler, 870 N.W.2d 119, 127 (Neb. 2015) (“[W]e review the trial court’s findings

[of historical facts] for clear error. However, whether those facts or circumstances

constituted a voluntary consent to search, satisfying the Fourth Amendment, is a

question of law, which we review independently . . . .”); State v. Moore, 318 P.3d 1133,

1139 (Or. 2013) (“[U]ltimately, whether consent was voluntary is a question of law,

and appellate courts are not bound by the trial judge’s conclusion as to the

voluntariness of a consent to search.”), adhered to as modified on other grounds on

reconsideration, 322 P.3d 486 (Or. 2014); State v. Shelton, 990 A.2d 191, 199 (R.I.

2010) (“[T]he determination of the voluntariness of an individual’s consent to search

is reviewed by this Court de novo. However, . . . ‘we give deference to the findings of

historical fact made by a trial justice in the context of making that determination.’”

(citations omitted) (quoting State v. Texter, 923 A.2d 568, 577 (R.I. 2007))); State v.

Thurman, 846 P.2d 1256, 1271 (Utah 1993) (“[T]he trial court’s ultimate conclusion

that a consent was voluntary or involuntary is to be reviewed for correctness. The

trial court’s underlying factual findings will not be set aside unless they are found to

be clearly erroneous.” (citation omitted)); State v. Weisler, 35 A.3d 970, 982–83 (Vt.

2011) (“[W]e are persuaded that the reasoning of those courts that have adopted

independent review [of the voluntariness of consent] is fundamentally sound, and

that any objections are without merit.”); State v. Artic, 786 N.W.2d 430, 439 (Wisc.

into either category, either (1) because they vacillate between the two standards of

review 3 or (2) because they employ de novo review where the facts are uncontested—

even while describing the contested matter of voluntariness as a question of fact. 4

2010) (“[V]oluntariness of consent . . . [is a] question[.] of constitutional fact. . . . We

review the circuit court’s findings of historical fact to determine if they are clearly

erroneous, and we independently apply those facts to constitutional principles.”

(citations omitted)).

3 Compare United States v. Weidul, 325 F.3d 50, 53 (1st Cir. 2003) (“[V]oluntariness

of consent is a factual matter that is subjected to the clear error standard of review”),

United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (“The voluntariness of

consent to search is a factual question, and as a reviewing court, we must affirm the

determination of the district court unless its finding is clearly erroneous.”), United

States v. Perales, 886 F.3d 542, 545 (5th Cir. 2018) (“Voluntariness of consent is a

factual inquiry that is reviewed for clear error.”), and United States v. Jones, 614 F.3d

423, 425 (7th Cir. 2010) (“We will reverse a district court’s finding of voluntary

consent only if it is clearly erroneous.”), with United States v. Casey, 825 F.3d 1, 14

(1st Cir. 2016) (“This court reviews the ruling on suppression de novo, accepting its

underlying factual findings unless clearly erroneous. The issue of consent to search

is reviewed de novo.” (citation omitted)), United States v. Carter, 300 F.3d 415, 423

(4th Cir. 2002) (“Because the ‘voluntariness’ of a search is a matter of law, it is

reviewed de novo.”), United States v. Asibor, 109 F.3d 1023, 1038 (5th Cir. 1997) (“We

review de novo the voluntariness of consent to a search.”), and United States v. Wade,

400 F.3d 1019, 1021 (7th Cir. 2005) (“Questions of law—that is, the legal conclusion

of whether Wade’s consent was voluntary and whether he was illegally seized—are

reviewed de novo.”); see also, e.g., Lee, 793 F.3d at 684 (“As for the question of consent,

this court has inconsistently announced both a de novo and a clearly erroneous

standard of review.”); Chavez-Barragan, 379 P.3d at 338 (“[W]e have sometimes

treated the question of whether a defendant’s consent to a search was voluntary as ‘a

question of fact to be decided by the trial court and upheld on appeal unless clearly

erroneous.’ . . . [I]n our more recent suppression cases, we have . . . review[ed] the

trial court’s findings of historic fact deferentially, . . . but we review the legal effect of

those facts de novo.” (quoting People v. Drake, 785 P.2d 1257, 1266 (Colo. 1990)));

Weisler, 35 A.3d at 975 (“[W]e [previously] acknowledged a tendency to ‘routinely’

invoke the ‘de novo’ formula in reviewing motions to suppress while applying a ‘more

deferential’ standard to the court’s actual decision . . . .”).

4 See, e.g., United States v. Robertson, 736 F.3d 677, 680 (4th Cir. 2013) (“In general,

we apply a ‘particularly strong’ clear error standard to factual determinations when

they are based on oral testimony. However, because our reversal stems from [the]

version of events [that the district court credited], credibility determinations play no

This uncertainty and inconsistency can produce analyses that are difficult to

explain. For example, in many cases courts have stated, in a span of a few sentences

and without any hint of irony, all of the following:

•

The voluntariness of consent is a question of fact.

•

Questions of fact are reviewed for clear error.

•

The voluntariness of consent should be reviewed de novo because the facts are

uncontested.

Courts in these cases do not attempt to explain the seeming incoherence of embarking

on de novo review—because the facts are “uncontested”—of the contested matter of

voluntariness, which they describe as a question of fact. See, e.g., United States v.

Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017); United States v. Arias-Robles, 477 F.3d

245, 248 (5th Cir. 2007); United States v. Lewis, 921 F.2d 1294, 1301 (D.C. Cir. 1990).

part in our ruling.” (citation omitted) (quoting Lattimore, 87 F.3d at 651)); United

States v. Valdez, 931 F.2d 1448, 1451–52 (11th Cir. 1991) (“[D]eterminations by a

district court with regard to voluntariness of consent to search, while entitled to great

deference by a reviewing appellate court, must still be overturned if clearly erroneous.

. . . In an instance in which ‘the decision the district court made was based solely on

the circumstances described through uncontradicted testimony of the agents whose

credibility was unquestioned, we believe that we are in as good a position as the

district court to apply the law to the uncontroverted facts.’ Accordingly, we review de

novo the district court’s determination of voluntariness of Valdez’s consent to search.”

(citations omitted) (quoting United States v. Garcia, 890 F.2d 355, 360 n.5 (11th Cir.

1989))).

A. Fact-intensive determinations involving Fourth and Fifth Amendment rights

are traditionally reviewed de novo.

1. The Court requires de novo review of determinations of probable cause and

reasonable suspicion to justify searches and seizures.

In Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657 (1996), the Court

discussed in detail the standards of review for findings of probable cause and

reasonable suspicion, stating,

The principal components of a determination of reasonable suspicion or

probable cause will be the events which occurred leading up to the stop

or search, and then the decision whether these historical facts, viewed

from the standpoint of an objectively reasonable police officer, amount

to reasonable suspicion or to probable cause.

517 U.S. at 696, 116 S. Ct. at 1661–62. The Court elaborated, “The first part of the

analysis involves only a determination of historical facts”—for example, what police

knew and when they knew it, what they did, what they observed, how other

individuals behaved, and what those persons said. Id. at 696, 116 S. Ct. at 1662. An

appellate court “should . . . review [those] findings . . . only for clear error and . . . give

due weight to inferences drawn from those facts by resident judges and local law

enforcement officers.” Id. at 699, 116 S. Ct. at 1663.

The Court recognized that the second part of the analysis, by contrast, “is a

mixed question of law and fact: ‘[T]he historical facts are admitted or established, the

rule of law is undisputed, and the issue is whether the facts satisfy the [relevant]

statutory [or constitutional] standard, or to put it another way, whether the rule of

law as applied to the established facts is or is not violated.’” Id. at 696, 116 S. Ct. at

1662 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19, 102 S. Ct. 1781,

1791 n.19 (1982)). Therefore, trial courts’ ultimate “determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal.” Id. at 699, 116

S. Ct. at 1663.

The Court offered several reasons for de novo review of reasonable-suspicion

and probable-cause determinations. First, it explained that a more deferential

standard “would permit, ‘[i]n the absence of any significant difference in the facts,’

‘the Fourth Amendment’s incidence [to] tur[n] on whether different trial judges draw

general conclusions that the facts are sufficient or insufficient to constitute probable

cause.’” Id. at 697, 116 S. Ct. at 1662 (quoting Brinegar v. United States, 338 U.S.

160, 171, 69 S. Ct. 1302, 1308 (1949)). That result, the Court stated, “would be

inconsistent with the idea of a unitary system of law.” Id. The Court also noted that,

beyond those concerns of consistency and predictability, deferential review would

significantly limit the judicial development of fixed rules that give meaning to the

Fourth Amendment: “[T]he legal rules for probable cause and reasonable suspicion

acquire content only through application. Independent review is therefore necessary

if appellate courts are to maintain control of, and to clarify, the legal principles.” Id.;

see also Miller v. Fenton, 474 U.S. 104, 114, 106 S. Ct. 445, 451 (1985) (“Where . . .

the relevant legal principle can be given meaning only through its application to the

particular circumstances of a case, the Court has been reluctant to give the trier of

fact’s conclusions presumptive force and, in so doing, strip a federal appellate court

of its primary function as an expositor of law.”), quoted in Ornelas, 517 U.S. at 697,

116 S. Ct. at 1662.

2. The Court requires de novo review of determinations of the voluntariness

of a suspect’s statement under the Fifth Amendment.

The split of authority as to appellate review of voluntary-consent

determinations does not exist in the Fifth Amendment voluntary-confession context.

This Court has directly resolved that matter, stating that where the voluntariness of

a defendant’s statement is at issue, “the nature of the inquiry itself lends support to

the conclusion that ‘voluntariness’ is a legal question meriting independent

consideration,” one that “has always had a uniquely legal dimension.” Miller, 474 U.S.

at 115–16, 106 S. Ct. at 452. Therefore, the voluntariness of a confession cannot be

“treat[ed] . . . as [a question] of simple historical fact.” Id. at 116, 106 S. Ct. at 453.

Miller did not announce a new approach to the Fifth Amendment voluntariness

inquiry. About 20 years earlier, and one week after deciding Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602 (1966), the Court considered the voluntariness of a man’s

confession to rape and murder after he had been “interrogated repeatedly over a

period of 16 days.” Davis v. North Carolina, 384 U.S. 737, 739, 86 S. Ct. 1761, 1763

(1966). Mr. Davis “alleged that he was beaten, threatened, and cursed by police” and

that he “repeatedly asked for a lawyer” but none was provided. Id. at 741, 86 S. Ct.

at 1764. Charlotte police officers denied those allegations, and the trial court accepted

their testimony and concluded that Mr. Davis’s confession was voluntary. Id. at 739,

741, 86 S. Ct. at 1763–64. This Court stated that it “need not review” the findings of

fact, then added, “It is our duty in this case, however, as in all of our prior cases

dealing with the question whether a confession was involuntarily given, to examine

the entire record and make an independent determination of the ultimate issue of

voluntariness.” Id. at 741–42, 86 S. Ct. at 1764.

B. The Court in Schneckloth v. Bustamonte described the voluntariness of consent

to a search as a question of fact.

Seemingly at odds with the de novo review of fact-bound constitutional matters

like probable cause and voluntariness of confessions, the Court stated in Schneckloth

v. Bustamonte that “the question whether a consent to a search was in fact ‘voluntary’

or was the product of duress or coercion, express or implied, is a question of fact to be

determined from the totality of all the circumstances.” 412 U.S. at 227, 93 S. Ct. at

2047–48. That statement, perhaps more than any other consideration, has been

widely cited in support of the proposition that findings as to the voluntariness of

consent should be reviewed deferentially on appeal, for clear error only. See, e.g.,

United States v. Robertson, 736 F.3d 677, 680 (4th Cir. 2013); United States v. Lee,

793 F.3d 680, 684 (6th Cir. 2015); United States v. Raibley, 243 F.3d 1069, 1075–76

(7th Cir. 2001); United States v. Thompson, 524 F.3d 1126, 1133 (10th Cir. 2008);

United States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017); State v. Butler, 302

P.3d 609, 613 (Ariz. 2013) (en banc); State v. Jenkins, 3 A.3d 806, 833 n.33 (Conn.

2010); State v. Moore, 154 P.3d 1, 13 (Kan. 2007).

Some courts have expressed a belief that Schneckloth not only suggests clearerror review but affirmatively requires it. For example, the District of Columbia

Court of Appeals has stated,

[I]n light of the Supreme Court’s repeated emphasis [in Schneckloth]

that the voluntariness of a consent to search is “a question of fact to be

determined from all the circumstances,” we have considered ourselves

“bound to uphold the trial court’s finding that a search was consensual

unless such a finding is clearly erroneous” . . . [u]ntil the Supreme Court

signals plainly that the voluntariness of consent for Fourth Amendment

purposes is no longer an issue of fact to be reviewed under the clearly

erroneous standard . . . .

In re J.M., 619 A.2d 497, 500–01 (D.C. 1992) (citations omitted) (quoting Schneckloth,

412 U.S. at 248–49, 93 S. Ct. at 2059; Kelly v. United States, 580 A.2d 1282, 1288

(D.C. 1990)).

Despite

the

importance

some

courts

have

placed

on Schneckloth’s

characterization of voluntariness of consent as a question of fact, that decision did

not involve or address the appropriate standard of appellate review. Rather, the issue

before the Court was whether voluntary consent to a search, like a voluntary

statement under Miranda, requires a knowing waiver of Fourth Amendment rights.

The Court said no, and elaborated that the voluntariness of consent is instead “a

question of fact to be determined from the totality of all the circumstances,” with

“knowledge of the right to refuse consent [being] one factor to be taken into account,”

Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2048. The thrust of the oft-quoted

statement, in other words, was the phrase “totality of all the circumstances,” not

“question of fact.” But the Court’s use of the latter phrase has taken on practically

dispositive significance in many courts’ evaluation of the proper standard of review

for voluntariness determinations.

Interestingly, in Schneckloth the Court drew heavily from its prior decisions

reviewing the voluntariness of defendants’ confessions under the Fifth Amendment.

See 412 U.S. at 223–24, 93 S. Ct. at 2045–46 (“The most extensive judicial exposition

of the meaning of ‘voluntariness’ has been developed in those cases . . . determin[ing]

the ‘voluntariness’ of a defendant’s confession . . . . It is to that body of case law to

which we turn for initial guidance on the meaning of ‘voluntariness’ in the present

context.”). The Court long has reviewed voluntariness independently, not

deferentially, in the Fifth Amendment context. And the totality-of-the-circumstances

analysis that Schneckloth requires is the same as the Court’s analysis of

voluntariness under the Fifth Amendment. See id. at 226, 93 S. Ct. at 2047. The

Court’s acknowledgement that both voluntariness determinations are fact-intensive

and require “careful sifting of the unique facts and circumstances of each case,” id. at

233, 93 S. Ct. at 2050, does not suggest that the Court believed conclusions about the

voluntariness of consent were entitled to greater deference than conclusions about

the voluntariness of statements. Nor did the Court give any reason that voluntariness

determinations under the Fourth Amendment would be reviewed differently than

equivalent determinations under the Fifth Amendment—a point that many courts

have noted in reviewing the voluntariness of consent as a legal determination rather

than a finding of fact.

II.

The Court should grant certiorari in this case to decide the proper

standard of review for determinations of the voluntariness of consent.

A. The lower courts will remain hopelessly divided on this matter until the Court

authoritatively decides it.

The proper standard of appellate review of voluntary-consent determinations

is a matter that warrants resolution by this Court. This federal constitutional

question will remain the subject of varied and conflicting application until the Court

decides it. In many jurisdictions, courts have made clear that they consider

themselves bound by Schneckloth’s “question of fact” characterization in the absence

of a direct decision of the matter by this Court. See, e.g., J.M., 619 A.2d at 500–01,

supra pp. 19–20; Lee, 793 F.3d at 684 (“This court recently discussed its prior use of

the two different standards [of review] and chose to follow Schneckloth.” (citing

United States v. Holland, 522 F. App’x 265, 271 (6th Cir. 2013))).

At the same time, courts in many other jurisdictions have determined that a

standard of independent review is more consistent with the Court’s jurisprudence

generally. The Supreme Court of Vermont examined the disagreement and its origins

at length in State v. Weisler. The court noted that “most federal courts have applied

a clearly erroneous standard to the voluntary-consent issue, although the decisions

are not monolithic,” while “many state courts defer[.] to the trial court’s underlying

findings of historical fact while independently deciding as a matter of law whether

they ultimately demonstrate that the defendant’s consent was voluntary,” Weisler, 35

A.3d at 975–76. It then explored Schneckloth’s role in the matter:

As so often with the law, tracing the source of a rule can yield

unexpected insights. One leading criminal-law commentator notes that

the clearly erroneous standard is most often “attributed to Schneckloth

. . . .” 6 W. LaFave, Search and Seizure § 11.7(c), at 449 (4th ed. 2004).

Schneckloth, however, said nothing specifically about the appropriate

standard of appellate review. See United States v. Navarro, 90 F.3d

1245, 1256 n. 6 (7th Cir.1996) (noting that “[a]lthough Schneckloth

terms the issue of consent an issue of fact to be determined from all the

circumstances, it does not speak directly to the standard of appellate

review.”). . . . [T]he bulk of the Court’s discussion was given to reviewing

and adopting the test governing the voluntariness of confessions . . . .

Context here is critical, because the standard of review governing the

voluntariness of confessions—at the time of Schneckloth and since—is

generally de novo. Clearly, the high court perceived no inconsistency in

deeming the voluntariness of a confession to be a highly contextual, factspecific inquiry in the first instance subject, nevertheless, to

independent review on appeal. Simply labeling consent to search as a

question of fact to be determined from the totality of the circumstances,

therefore, does little to advance the standard-of-review analysis.

Id. at 976–77 (some citations omitted).

After thoroughly reviewing other courts’ explanations of the reasons for the

various standards they employ, the Vermont court concluded, “[W]e are persuaded

that the reasoning of those courts that have adopted independent review in this

setting is fundamentally sound, and that any objections are without merit. . . . The

ultimate question is whether ‘a reasonable person in defendant’s circumstances’

would have felt free to refuse the officer’s request.” Id. at 982 (footnote omitted); see

also Thompson v. Keohane, 516 U.S. 99, 113, 116 S. Ct. 457, 465–66 (1995) (explaining

that a Miranda custody analysis “presents a ‘mixed question of law and fact’

qualifying for independent review” because while “[c]redibility determinations . . .

may sometimes contribute to the establishment of the historical facts . . . the crucial

question” is how “a ‘reasonable person’” would perceive the circumstances), quoted in

Weisler, 35 A.3d at 983. Other authorities that have similarly examined the matter

have reached the same conclusions. See, e.g., 6 LaFave, Search & Seizure § 11.7(c);

State v. Phillips, 577 N.W.2d 794, 800–02 (Wisc. 1998).

B. This case is an ideal vehicle for the Court to decide the proper standard of

review.

In reviewing the voluntariness of Mr. Ratcliff’s consent to a search of his home

in this case, the Eleventh Circuit did not consider at length the standard that should

govern its review, stating simply that it gave “‘a great deal of deference’ to [the district

court’s] finding” of voluntary consent. Pet. App. 58a (quoting Garcia, 890 F.2d at 359).

That it cited Garcia as the source of that rule is surprising, because that decision

actually is an example of the inconsistent standards that many courts have employed.

The Eleventh Circuit did state in Garcia that “[n]ormally, we will accord the district

judge a great deal of deference regarding a finding of voluntariness . . . because the

trial judge usually bases his finding on credibility choices resulting from conflicting

testimony.” 890 F.2d at 359. But that statement actually came immediately after the

court finished explaining that it would review the ultimate determination of

voluntariness, not deferentially, but de novo. See id. at 358–59 (“Initially, we must

determine under which standard to review the trial court’s ruling that Garcia’s

consent to the search of his home was involuntary. . . . [W]hile we must defer to the

trial judge’s findings of fact unless clearly erroneous, we are to review the district

judge’s application of law to the facts de novo.”).

Mr. Ratcliff did not challenge any of the district court’s credibility

determinations or argue that its findings of fact were clearly erroneous, so under a

bifurcated review like Ornelas describes, the district court’s voluntariness

determination would have been reviewed de novo on appeal. And there is a reasonable

likelihood that de novo review would have produced a different result. When Mr.

Ratcliff gave consent, four members of the Pleasant Grove, Alabama, police

department were inside his house without either a warrant or consent. Three of them

had been inside for over an hour, during which they demonstrated their control over

the premises by roaming freely from room to room and confronting him about their

most incriminating observations. They had continued those activities despite the fact

that both of the exigencies that the district court found justified their presence—

performing a protective sweep for officer safety and preventing the destruction of

evidence—were resolved about two minutes after they entered. They had proceeded

without his consent up to that point and had given no indication that it mattered.

Considering the question of voluntariness de novo in light of government

witnesses’ uncontroverted testimony and the district court’s uncontested findings of

fact, the court of appeals could have concluded that Mr. Ratcliff’s purported consent

was not voluntary but rather an expression of resignation—of acquiescence to the

officers’ implied claim of lawful authority to explore his house. Cf. Bumper, 391 U.S.

at 548–49, 88 S. Ct. at 1792 (government’s burden of proving voluntariness “cannot

be discharged by showing no more than acquiescence to a claim of lawful authority”);

see also 4 LaFave, Search & Seizure § 8.2(a) (“One factor very likely to produce a

finding of no consent under the Schneckloth voluntariness test is an express or

implied false claim by the police that they can immediately proceed to make the

search in any event.” (footnotes omitted)). But having determined that it should “give

‘a great deal of deference’ to” the district court’s finding of voluntary consent, the

court of appeals easily concluded, after just a few sentences’ recitation of facts, that

it had “nothing near a ‘definite and firm conviction that the trial judge erred’ in

finding that Ratcliff’s consent was voluntary.” Pet. App. 58a (quoting Garcia, 890 F.2d

at 359).

Schneckloth’s seemingly offhand use of the phrase “question of fact” has

assumed dimensions that it is not clear the Court ever intended. The Eleventh Circuit

should have engaged in a searching analysis of whether Mr. Ratcliff’s consent for

police to continue searching his house was “the product of an essentially free and

unconstrained choice,” Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2047 (quoting

Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879 (1961)). The Court

should grant certiorari in this case to resolve the enduring split of authority regarding

the proper standard of review for determinations regarding the voluntariness of

consent under the Fourth Amendment.

CONCLUSION

For the foregoing reasons, Petitioner prays that this Court grant a writ of

certiorari to the Eleventh Circuit Court of Appeals.

Respectfully submitted this, the 10th day of July, 2018.

KEVIN L. BUTLER

Federal Public Defender

Northern District of Alabama

ALLISON CASE

Assistant Federal Public Defender

TOBIE J. SMITH

Research & Writing Attorney

Northern District of Alabama

505 20th Street North, Suite 1425

Birmingham, Alabama 35203

(205) 208-7170

Tobie_Smith@fd.org

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