“Do You Mind If I Look?”

Here’s an interesting Fourth Amendment case in which video likely makes all the difference. A police officer stops a driver named Williams for a traffic violation. After checking out his driver’s license, the officer asks the driver for consent to search the car:

That solicitation continued over a period of about a minute and included approximately six requests. The officer asked that many times because appellant would not commit one way or the other. Indeed, captured on the video of the event was the officer informing appellant that he was being asked a “yes or no” question. Furthermore, the last request propounded to appellant consisted of Williams asking: “Do you mind if I look?” To it, appellant answered “yes,” according to the officer. Upon so replying, appellant was ordered to exit the car.

Held: The car cannot be searched, as this exchange cannot satisfy the standard of clear and convincing evidence Texas law requires to prove that consent to search was freely and voluntarily given. The court explains:

The officer’s desire to hear a “yes” or “no” answer continued until appellant said “yes” or “I guess” to the last solicitation. Because that utterance allegedly evinced to Williams “clear and unequivocal” consent, he ordered appellant to exit the vehicle. The problem comes, however, in the nature of the question to which appellant said “yes” or “I guess.”

The officer had not asked “may I search” but rather “would you mind if I look?” Answering “yes” to the latter meant that appellant did mind. Answering “I guess” also had and has like connotation; that is, saying “I guess” in response to being asked if one minds whether something happens can well indicate that he does.

State v. Meekins, — S.W.3d –, 2009 WL 4876866 (Tex.App.-Amarillo 2009). Thanks to JH for the tip.