Over at Volokh Conspiracy, Orin Kerr posts about a decision, State v. Meekins, 2009 WL 4876866 (Tex.App.-Amarillo 2009). where the validity of a consent search is ultimately determined based on the nuance of language.
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 problem, of course, is that the answer “yes” to a “do you mind” question is a negative rather than a positive under the ordinary rules of construction. Apparently, this rule applies in Texas as well as the United States.
My impression is that Orin see this decision as a curiosity, a decision of interest. I see it as a brutal reminder of the failure of testimonial evidence by police officers at suppression hearings. What distinguished this case was that the officer’s words were captured on video. Absent video, this is how the testimony on cross-examination would have gone:
The only way to challenge this testimony is to put the defendant on the stand for a swearing contest. The hope, if you can call it that, is that a judge might be inclined to believe that defense counsel wouldn’t be so foolish as to expose his client to cross-examination unless it was worth it, that the testimony is true. While this can happen, it’s still a long shot. A very long shot. Few judges will take the chance of siding against the cops. They almost always go with the odds.
These hearings often do grave harm to a lawyer’s forearm. That’s because the defendants, hearing the officer’s testimony, grab hold and squeeze. They squeeze tightly. The blood stops circulating. Tingling begins, and then fades as the hand becomes lifeless. It’s amazing how strong the grasp of a person who forced to sit silently as a cop lie on the stand can be.
One might suppose that the colorless, flavorless, unnatural exchange offered by the officer’s testimony might cause a judge of reasonable intelligence and experience to question whether the testimony is factual or conclusory. No cop has ever asked “do you consent?” It’s invariably a game, where the players use such ploys as “you must be hiding something” and “I’ll be happy to get a warrant.” And yet, the testimony comes out the same at the suppression hearing no matter how many times its presented as a conclusion.
So where do we learn that real life doesn’t mirror the police officer’s testimony? From the rare video, for one. From witnesses, especially neutral witnesses when the officer mistakenly allowed people to be close enough to hear his words, for another. Unfortunately, neither of these scenarios happens frequently enough to alter the regular testimony or make the judge wonder whether he’s backing the wrong horse. Most of the time, it’s just the cop and the defendant. Who you going to believe?
It’s heartening to read about the decision, where the court parsed the language to recognize that the vagaries of a question fail to satisfy the requirement of demonstrating free and voluntary consent. It might have been more heartening had the court never reached the 6th attempt by the officer to obtain consent, the 5 prior failures to give it being more than sufficient to demonstrate that the defendant did not wish to consent, and that the continued pressure by the cop to get him to submit to the shield vitiated any possibility of free and voluntary consent. But I will take a good decision as it comes, even if it could have been better.
It’s disheartening, however, to think of the vast majority of suppression decisions where there was no video recording of the words spoken, and where suppression is denied based on the conclusory testimony of the officer. This one win only highlights the thousands of losses where there’s no video, and courts happily defer to the facile testimony of the officer when denying that any constitutional violation occurred.
My impression is that Orin see this decision as a curiosity, a decision of interest. I see it as a brutal reminder of the failure of testimonial evidence by police officers at suppression hearings. What distinguished this case was that the officer’s words were captured on video. Absent video, this is how the testimony on cross-examination would have gone:
Officer: I asked the defendant for consent to search his car and he gave it to me.How do I know what the testimony would be? Because I’ve heard it too many times. And there’s not a thing that can be done about. Without any means of proving the words, the exchange, the scene, we are left to the police officer’s description of what transpired between him and the defendant. And you can bet that it’s going to be presented as a fait accompli. Aside from the rarest of instances, where an officer takes the stand and testifies to an exchange that actually involves the potential for a real exchange, there is no question that can be asked that will elicit anything other than the officer’s conclusory testimony.
Defense Attorney: You don’t recall the exact words you used?
Officer: I said, “do you consent to my searching your car,” and he said “yes”.
Defense Attorney: You didn’t say “do you mind if I look?”
Prosecutor: Objection, asked and answered.
Judge: Overruled. Answer the question.
Officer: I said “do you consent” and he said “yes”. just like I already told you.
Defense Attorney: Nothing further.
The only way to challenge this testimony is to put the defendant on the stand for a swearing contest. The hope, if you can call it that, is that a judge might be inclined to believe that defense counsel wouldn’t be so foolish as to expose his client to cross-examination unless it was worth it, that the testimony is true. While this can happen, it’s still a long shot. A very long shot. Few judges will take the chance of siding against the cops. They almost always go with the odds.
These hearings often do grave harm to a lawyer’s forearm. That’s because the defendants, hearing the officer’s testimony, grab hold and squeeze. They squeeze tightly. The blood stops circulating. Tingling begins, and then fades as the hand becomes lifeless. It’s amazing how strong the grasp of a person who forced to sit silently as a cop lie on the stand can be.
One might suppose that the colorless, flavorless, unnatural exchange offered by the officer’s testimony might cause a judge of reasonable intelligence and experience to question whether the testimony is factual or conclusory. No cop has ever asked “do you consent?” It’s invariably a game, where the players use such ploys as “you must be hiding something” and “I’ll be happy to get a warrant.” And yet, the testimony comes out the same at the suppression hearing no matter how many times its presented as a conclusion.
So where do we learn that real life doesn’t mirror the police officer’s testimony? From the rare video, for one. From witnesses, especially neutral witnesses when the officer mistakenly allowed people to be close enough to hear his words, for another. Unfortunately, neither of these scenarios happens frequently enough to alter the regular testimony or make the judge wonder whether he’s backing the wrong horse. Most of the time, it’s just the cop and the defendant. Who you going to believe?
It’s heartening to read about the decision, where the court parsed the language to recognize that the vagaries of a question fail to satisfy the requirement of demonstrating free and voluntary consent. It might have been more heartening had the court never reached the 6th attempt by the officer to obtain consent, the 5 prior failures to give it being more than sufficient to demonstrate that the defendant did not wish to consent, and that the continued pressure by the cop to get him to submit to the shield vitiated any possibility of free and voluntary consent. But I will take a good decision as it comes, even if it could have been better.
It’s disheartening, however, to think of the vast majority of suppression decisions where there was no video recording of the words spoken, and where suppression is denied based on the conclusory testimony of the officer. This one win only highlights the thousands of losses where there’s no video, and courts happily defer to the facile testimony of the officer when denying that any constitutional violation occurred.
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I agree that this case comes out differently without the video; that’s why I began my post with the comment, “Here’s an interesting Fourth Amendment case in which video likely makes all the difference.”
The one caveat I have is that it’s possible that the defendant actually thought he was giving consent: We’ve all had the experience of someone saying “Do you mind . . .?” and answering, “sure!,” when when we mean is that we don’t mind, not that we do. The problem is that “May I”, and “Do you mind if I” have the same popular meaning but the opposite linguistic meaning. With that said, I think the Texas court was correct given the clear and convincing burden of proof.
No disagreement with anything. From my perspective, it shines a light on the travesty of disputing consent claims under normal circumstances. God bless video. I’m just amazed that it wasn’t magically erased, malfunctioned, disappeared, or forgotten about until after the case was over.
How many more videos like this must people see before realizing that officers are perjuring themselves in courtrooms nationwide?
Carry an inexpensive DIGITAL RECORDER (or know how to use your cell phone accessoriea) at all times. Begin “rolling tape” as soon as you see flashing lights in your mirrors …
The decision is a travesty. Obviously, the cop simply misunderstood the bad guy.
If elected to the Amarillo Court of Appeals, I will seek to reverse this decision, and I already know how to do it: there oughta be a good faith exception for situations where the police fool themselves with their own questions.
That’s the part that troubles me. I thought in Texas, either answer to the question would have meant consent to search.
I was involved in a criminal drug case where the arresting officer used statements from an informant (Who I had never met)on the Affidavit to obtain a search warrant. According to the officers statements on the affidavit, the informant told the officer he had bought drugs from me, was a regular visitor at my house where, we would get high, so on and so on. In reality, I had never met the officers informant. When the search warrant was served the cops found a small baggie with meth residue. After I obtained the arrest report and the officers affidavit, I contacted the Informant and asked him why he did what he did. He said he never told the cop anything and In fact was in the county jail when the officer asked him about me (2 weeks prior I was pulled over by this cop and refused to let him search me/car-he became infuriated but, I held my ground unfortunately, this put me on his radar screen)The cop told the informant if he went along with the affidavit he would be released from jail that night. Well, after I talked to the informant he agreed to testify on my behalf at my Motion to Suppress hearing. On the stand he stated he had never met me before I was arrested and that the cop had lied on the affidavit. When he finished his testimony the judge called him a liar and denied the motion. The moral to this story is: If a cop on the street says “Good morning” to you, get it in writing.
Exactly right. Also, I hereby withdraw my stated intentions to run for the intermediate court, and formally announce my candidacy for the Court of Criminal Appeals.
That way, when my proposed solution reverses this case, it can become the law of the whole land. By which, of course, I mean Texas.