Tenth Circuit Holds Wife's Consent to Search Home Tainted
Law enforcement likes consent to search a home. With consent to search a home, law enforcement does not need to apply for a search warrant. The law prefers search warrants, but allows consent when "freely given".
In USA v. Fox, 2010 U.S. App. Lexis 5804, the Tenth Circuit reversed a felon in possession of a gun conviction because officers illegally searched a defendant's home based upon the defendant's wife's consent to search the home. The problem for the police was that the consent was obtained after an illegal detention of the wife. The full opinion can be read here: ca10.washburnlaw.edu/cases/2010/03/09-5131.pdf
The Tulsa police arrested Mr. Fox outside his home for an outstanding warrant. When Mrs. Fox arrived home, she stopped in the street and asked the officer what was going on. One officer hopped into the passenger side and told Mrs. Fox to pull into the parking lot of a local convenience store. Once there, the officer checked Mrs. Fox's license and checked her for outstanding warrants. The officer then conducted a "consensual" search of Mrs. Fox's car and found an illegal drug - likely methamphetamine. A that point, the officer told her that he had bigger fish to fry - Mr. Fox. The officer asked for consent to search the family home. Mrs. Fox said "yes". The officers from Tulsa searched the home and found a shotgun. Mr. Fox was a convicted felon.
The opinion focuses on whether Mrs. Fox was seized when the officer hopped in her car and directed her to another location. The Tenth Circuit held that, indeed, Mrs. Fox was seized and that there was no legal basis for the seizure. Thus, the consent resulting during the illegal seizure was, as a matter of law, coerced or not "freely given".
For the practitioner, the Tenth Circuit re-stated the factors it considers when deciding whether a seizure occurs:
In determining whether an individual has been seized, we have considered several factors, including:
(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of a person's personal effects; (6) a request to accompany the officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.
United States v. Rogers, 556 F.3d 1130, 1137-38 (10th Cir. 2009). No single factor is dispositive, and this list is not exhaustive. Id. at 1138. Another relevant factor that suggests an encounter is not consensual is whether the officer advised an individual that she is free to leave. United States v. Ledesma, 447 F.3d 1307, 1314 (10th Cir. 2006).
