Split Noted: What is the Standard Governing the Review of the Scope of a Consent to Search?

Per United States v. Jones, 2008 WL 1073739, *15 (1st Cir. Apr. 11, 2008)

Whenever an appellate court begins it opinion reviewing a criminal conviction for drug crimes by calling the defendant “Smoke,” it is not going to end well. Rashaun “Smoke” Jones checked into the Towneplace Suites hotel. The manager informed a police sergeant of this fact (the case does not say why), and a database search revealed an outstanding warrant. While a team was assembling to effect the Jones’s arrest, officers observed others leaving the hotel room and behaving in such a manner as to indicate a drug transaction had just taken place.

Six officers subsequently entered the hotel room, without knocking and without a warrant. Marijuana was in plain sight, and the four occupants of the room were handcuffed. Jones was identified, brought to a separate room, and read his Miranda rights. An agent then asked if they could search the suite, and Jones gave his consent. Heroin and ecstacy were found inside a cabinet in the kitchenette.

Jones appeals his conviction for possession with intent to distribute, arguing that the no-knock entry requires suppression, that his consent was not knowing or voluntary, and that his consent did not extend outside the bedroom in which he was being held. While hotel occupants have the same Fourth Amendment rights as homeowners, Hudson v. Michigan held that the exclusionary rule does not apply to no-knock entries when the police have a valid reason to enter.

The consent issue is tougher. Can consent be truly free and voluntary when one has just been shocked by the entry of fifteen police officers with weapons drawn and is now handcuffed? The district court says yes, and the First Circuit affirms under the clearly erroneous standard. As a personal matter, I am inclined to agree that the Miranda warnings did help ensure the voluntariness of Jones's consent.

Judge Torruella does note that the circuits have split over the proper standard for reviewing the scope of this freely given consent. The CA 5 believes that this is a legal issue to be reviewed de novo, whereas the CA 8 treats it as a factual issue under the clearly erroneous standard. The CA 1 does not decide what standard it would apply as would affirm under either. Finally, the panel also rejects two different sentencing appeals.

Appellate Law & Practice also provides a typically thorough summary of the case.