Imagine you get lost driving in McLean, Virginia, late one night, and that you find yourself near the CIA headquarters. You decide to drive up the headquarters main gate so you can ask for directions. Moments after you ask for directions, two armed security officers come out and yell at you to put your hands up. One officer has a nine-millimeter pistol; the other has a shotgun positioned so it could be readily fired at you. You put your hands up, and the officers start asking you questions. Do you know where you are? Are there any drugs or alcohol in the vehicle? Do you have any ID?
On the night of October 14, 2002, this happened to Terrence Smith. The CIA security officers quickly found out that Smith was driving without a license, and ordered him out of the car. The officers concluded that Smith appeared to have been drinking, and eventually arrested him for drunk driving (a charge that he was acquitted of at trial). During a search incident to his arrest for DWI, the officers found cocaine in Smith’s car. Smith moved to suppress the cocaine on the ground that he had been unreasonably seized when the officers came out with their guns and ordered him to put his hands up. Judge Gerald Lee of the EDVA denied the motion to suppress, ruling that Smith had been seized but that the police had reasonable suspicion to seize him under the principles of Terry v. Ohio. Smith was convicted of the cocaine charges in the U.S. District Court for the Eastern District of Virginia and sentenced by Judge Lee to two years and two days in prison. Smith then filed an appeal renewing his argument that the chared against him resulted from an unreasonable seizure.
In an opinion by Judge Luttig published on January 27th, the Fourth Circuit affirmed the conviction. This much is unremarkable; while Smith was obviously seized during the encounter, it seems the evidence against him was obtained in ways unrelated to seizure. The evidence was not a fruit of the seizure, and the seizure itself likely was reasonable given the heightened security concerns at the CIA headquarters. As a result, the conviction should have been affirmed.
But Judge Luttig didn’t affirm on these grounds. Instead, he resolved the case on a rationale that strikes me as rather remarkable. According to Judge Luttig, the encounter at the CIA headquarters gate was actually consensual — or at least reasonably was believed by the officers to be consenusal. That’s right, Smith actually wanted to have his liberty restricted, at least according to the court:
We are satisfied that Smith’s unauthorized and voluntary approach to officers outside the CIA headquarters in the middle of the night justified a belief by the officers that he was consenting to the customary security precautions required at that time of the night at the entrance to such a protected facility, regardless of whether Smith intended to consent to a demand for identification by armed officers or whether he even knew that he was so consenting. A reasonable person would certainly know that officers at the CIA gate would be armed when approaching an unidentified car, and that such officers would seek to determine who was entering the property without authorization. As such, a reasonable person would view a decision to initiate a consensual encounter with officers near the gate of the CIA as consent to these foreseeable circumstances. The officers were thus plainly justified in believing that their encounter with Smith at the Jersey barrier was consensual. Therefore, if any seizure occurred, it was within the scope of Smith’s consent and thus reasonable within the meaning of the Fourth Amendment.
This strikes me as quite far-fetched. The Supreme Court’s test for determining the scope of consent is what a reasonable person listening to the exchange between the officer and the suspect would think the suspect was agreeing to let the officer do. See Florida v. Jimeno, 500 U.S. 248, 251 (1991). It’s hard to imagine that asking for directions is a form of request to have armed officers order you to put your hands up and detain you. The guy wanted to get directions; he didn’t expect the Spanish Inquisition (of course, nobody expects the Spanish Inquisition!). Whether the suspect should have known that something like this might eventually happen isn’t the test; forseeability is not the same as consent.
The opinion tries to work around this difficulty by using Illinois v. Rodriguez, 497 U.S. 177 (1990), to modify the Jimeno test so that it focuses more on the perspective and mindset of the police officer. I don’t think that works, though. In Rodriguez, the Supreme Court held that “determination of [authority to] consent to enter [a home to conduct a search] must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” The idea is that if a person reasonably seems to have the authority to consent to a search or seizure, the resulting search or seizure is not invalid if it turns out later that the person was just posing as someone with that authority. In the paragraph before the one excerpted above, Judge Luttig gives Rodriguez a “cf.” cite for the view that the key question is only whether the officer’s subjective belief about the consent was reasonable from his perspective. But Rodriguez is not so broad; it deals only with authority to consent (something that is not an issue here), not how to construe the scope of consent.
More broadly, I don’t think I have ever seen a case in which a court found a consensual seizure of a person. I might decide to let the police have my stuff, and in that case I am consenting to have the police take away my property. The seizure of my stuff is consensual, and therefore reasonable. But seizures of persons are distinct from seizures of property under the Fourth Amendment; the test is no longer deprivation of a possessory interest, but rather whether a reasonable person in that situation would feel free to leave. I suppose it’s theoretically possible to voluntarily consent to have your freedom to leave revoked, but it seems like an odd (and dangerous) rationale. Under existing precedents, judicial scrutiny of government security practices generally invites the courts to balance the need for the practice with its intrusiveness. If a government search or seizure is deemed “consensual” when a person really should have known it was coming, however, then such procedures generally will be exempt from judicial scrutiny.
Thanks to CrimLaw for the heads-up on this case; CrimLaw’s coverage also offers some extensive analysis.
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