Consent searches: factors courts consider in determining voluntariness. (Legal Digest).

Law enforcement officers often ask individuals if they will consent to a search of something, such as a package, vehicle, or dwelling. The Fourth Amendment preserves the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (1) The U.S. Supreme Court has stated that a search conducted pursuant to lawfully given consent is an exception to the warrant and probable cause requirements of the Fourth Amendment. (2) However, because a consensual search of an item or location still is a search, the Fourth Amendment reasonableness requirement still applies.

For a consent search to be constitutionally valid, the consent must be voluntarily given by a person with proper authority. (3) The government has the burden of proving that an individual voluntarily consented to the search. (4) In 1973, the U.S. Supreme Court ruled in Schneckloth v. Bustamonte (5) that to determine whether an individual voluntarily consented to a search, the reviewing court should consider the totality of the circumstances surrounding the consent. This article provides a broad overview of the types of factors courts have considered in conducting their totality of the circumstances analysis into whether a person has voluntarily consented to a search.

FACTORS

Under the U.S. Supreme Court's totality of the circumstances test, the impact of everything that occurs during the course of an individual giving consent to search a particular person, place, or thing must be considered when determining if the consent was voluntary. Courts may consider virtually any factor surrounding an individual's consent. However, an analysis of court decisions indicates that there are a number of factors that are particularly relevant. These factors can be placed into four broad categories: the characteristics of the subject giving the consent, the environment in which the consent is given, the actions taken or statements made by the subject giving the consent, and the actions taken or statements made by law enforcement officers during the course of asking for consent to search.

Characteristics of the Subject

Courts carefully will examine the characteristics of the individual who is asked to give consent to a search. Courts have, for example, specifically considered the individual's age, (6) education, (7) background, (8) experience with the legal system, (9) physical condition, (10) and ability to understand and communicate (11) in determining the voluntariness of a consent to search.

The U.S. Court of Appeals for the Tenth Circuit considered many of these characteristics in United States v. Zapata. (12) In Zapata, a DEA agent approached Zapata while he sat in the coach section of a train stopped in Albuquerque. The agent and backup officer both wore plainclothes, did not display weapons, asked routine questions in a regular tone of voice, and did not tell Zapata that he need not answer the agent's questions.

The district court suppressed the evidence found during the consent search for several reasons. The agent blocked Zapata from leaving his seat and had not told him that he did not have to comply with the agent's requests. In addition, the court was concerned that Zapata had difficulty speaking and understanding English.

The appellate court reversed the district court's decision that Zapata's consent was not freely and voluntarily given. It rejected Zapata's argument that he did not voluntarily consent to the search because of his background and attitudes resulting from his experiences in Mexico. The appellate court stated:

But even assuming some subjective characteristics are relevant to the validity of Mr. Zapata's consent, we reject the notion that his attitude toward police, from whatever source, can constitute such a relevant subjective characteristic. While such attributes as the age, gender, education, and intelligence of the accused have been recognized as relevant, an intangible characteristic, such as attitude toward authority, is inherently unverifiable and unquantifiable. (13)

In United States v. George, (14) the U.S. Court of Appeals for the Ninth Circuit upheld the district court's conclusion that George voluntarily consented to a search of his hotel room. George passed out in the back of a taxi cab 3 days after arriving in Seattle on a flight from Hong Kong. The cab driver called the police to help George. After being transported to the hospital, medical personnel informed law enforcement officers that George's X-rays revealed what they believed to be balloons in his stomach and that he was suffering from a drug overdose. A police officer placed George under arrest and gave him Miranda warnings. George indicated that he understood his rights, and answered "yes" when asked whether he would consent to a search of his hotel room. In rejecting George's motion to suppress evidence found in his hotel room, the court stated that George voluntarily consented.

[The officer] told George that he was under arrest and asked if he understood. George answered "yes." [The officer] advised George of his Miranda rights and asked if he understood. George answered "yes." George then agreed to answer some questions. In response to [the officer's] questioning, George identified the name of the motel where he was staying and the room number. George also answered "yes" when [the officer] asked him for consent to search his motel room and any belongings in it. George was coherent, gave responsive answers to [the officer's] questions, and was able to remember accurately his motel and room number. Although George was undoubtedly in critical condition at the time, his injuries "did not render him unconscious or comatose." (5)

Environment

The environment in which a person is asked to consent to a search also will be considered by the courts. Factors viewed as significant with regard to the environment include the nature of the location where the consent is given, (16) the number of people present, (17) the number of law enforcement officers present, (18) and the time of day. (19)

For example, in United States v. Thomas, (20) police stopped Thomas's vehicle after observing that neither Thomas nor the passenger in his car were wearing seatbelts as required by state law. One of the officers received permission from Thomas to search the car. The officers found crack cocaine inside the vehicle.

In upholding the district court's ruling that Thomas voluntarily consented to the search, the U.S. Court of Appeals for the Eighth Circuit rejected Thomas's argument that the seizure of his person and coercive nature of the traffic stop tainted the consent to search. The court found that:

The age of the consent giver, the intimidating actions of police, the time of day, and the consent giver's familiarity with the area are proper considerations under the totality of the circumstances evaluation of whether consent is voluntary. In this instance, however, they are not sufficient to establish that Thomas acted against his will when he told police they could search his automobile. (21)

In United States v. Winningham, (22) the U.S. Court of Appeals for the Tenth Circuit upheld the district court's suppression of marijuana found during the search of a vehicle because the subject's consent to search was given involuntarily. In Winningham, Border Patrol agents in New Mexico stopped a van based on information that it might contain illegal aliens. The van driver consented to a search of the vehicle. After opening the van and finding no one inside, one of the four agents told the driver that he had information that the van contained narcotics and asked the driver if he could "run a dog on [the] vehicle." (23) The agents remained next to the driver and passenger while waiting 5 or 6 minutes for two additional Border Patrol agents to arrive with a dog. The dog jumped inside the van through a door the agents had opened and alerted to a vent in which the agents discovered 50 pounds of marijuana.

The appellate court found that the reasonable suspicion for stopping the van ended when the agents failed to locate illegal aliens inside. The court further considered the totality of the circumstances surrounding the search and found the defendant had not given voluntary consent for the dog to enter the van. In reaching this conclusion, the court stated that the driver had been asked to get out of the van and stand next to three uniformed armed officers, was never told he had a right to refuse consent, was never told he could leave, and was blocked from moving around freely. The district court further noted that the phrase, "run a dog on the van," was unclear and could not be understood as consent to permit the dog to enter the vehicle. (24)

Subject's Actions or Statements

Courts carefully will examine any actions taken, or statements made, by the individual who is asked to give consent to a search by a law enforcement officer. Factors particularly relevant to courts in evaluating cases involving consent searches include: whether the individual signed a consent to search form or provided consent in writing, (25) whether the individual requested or consulted with counsel, (26) whether the individual indicated consent through a physical action, such as handing an item to an officer, (27) and what the individual said in response to the officer's request to search. (28)

Many of these factors were considered by the U.S. Court of Appeals for the Eighth Circuit in United States v. Chaidez. (29) In Chaidez, the court of appeals confirmed the district court's finding that Chaidez voluntarily consented to the search of his vehicle. After a Missouri State Highway Patrol trooper pulled Chaidez over for speeding, the trooper asked Chaidez if it would be all right to look in the car. The trooper then completed portions of a consent to search form and handed it to Chaidez to read and sign. After having the form long enough to read it, Chaidez signed the form and opened the car trunk for the trooper. Upon inspecting the trunk, the trooper noticed that the back portion of the passenger seat looked as if it had been removed and replaced. The trooper found a package under the seat containing cocaine and placed Chaidez under arrest. A search of the vehicle at the trooper's headquarters revealed 50 kilograms of cocaine secreted inside.

After listing a number of personal characteristics and environmental factors important to consider, the court analyzed the facts in this case. (30) The court found that Chaidez, an adult, had a sufficient comprehension of English, was not impaired by drugs or alcohol when he gave consent, and his prior conviction for heroin distribution increased his awareness of the rights of accused persons and the criminal justice system. In addition, Chaidez was questioned only briefly in a public area prior to consenting to the search. He was not threatened or intimidated prior to consenting, and he did not rely on any promises or misrepresentations made by the trooper. Finally, he orally consented to the search of the car, and he opened the trunk for the trooper. The court noted that while the trooper apparently did not tell Chaidez that he had the right to refuse to consent, that fact, while cutting against the voluntariness of the consent, was not dispositive. (31)

In United States v. Worley, (32) the U.S. Court of Appeals for the Sixth Circuit upheld the district court's suppression of evidence obtained by police during a warrantless search. In Worley, an officer observing Worley thought it was suspicious that he appeared to be using plastic bags as luggage. The officer told another officer of his suspicions, and the two began to follow Worley. The officers approached Worley as he was placing the bags in a locker and asked if he would speak with them. Worley agreed to talk with the officers and produced a valid California driver's license. One of the officers returned the license and asked to see Worley's ticket. The officer looked at the ticket and noticed that it had been purchased with cash and that there were no baggage claim tickets attached. The officer asked Worley about the ticket and was informed that it was a round trip ticket that a friend of Worley's had purchased. Despite Worley's assertion to the contrary, after reviewing the ticket and based on the low fare, the officer insisted that the ticket was a one-way ticket and returned it to Worley.

The officer then asked Worley whether a beige bag he had placed in the locker belonged to him and what it contained. Worley told the officer that the bag contained a pair of drumsticks and a T-shirt he had just purchased from a gift shop. The officer asked Worley if he could look in the bag, and Worley told the officer, "[Y]ou've got the badge, I guess you can." (33) The officer opened the locker, took out the bag, searched it, and found methamphetamine inside.

The appellate court upheld the district court's granting of Worley's motion to suppress. The court agreed with the government that there was no overt duress or coercion, officers were in plainclothes with no visible weapons, spoke in conversational tones, and were in a public place. In addition, it agreed that Worley was of sufficient age, intelligence, and educational level to consent to the search and there was no lengthy detention and interrogation. However, the court was concerned about the officer's s misunderstanding about the ticket and his insistence that the ticket was in fact one-way. The court believed that the mistaken insistence indicated to Worley that further disagreement with the officer would be unproductive and that he had no choice but to comply with the request to search. The court pointed out that Worley did not assist the officers in the search or make any additional statements regarding his willingness to permit the search. The court further noted that while there is no requirement for officers to inform subjects of the right to refuse consent to search, the failure to inform Worley was a factor to consider, as was the anxiety that frequently comes with being in an airport, and the fact that Worley saw the officers' badges. In affirming the district court's denial of the motion to suppress, the court of appeals quoted extensively from the lower court's ruling.

In this case the defendant has argued that in permitting the search, he merely acquiesced to the officer's authority rather than giving his unequivocal voluntary consent to search. It's the determination of the Court after a very, very careful review of the entire record and much submittal by all of you...that the position of the defendant is supported by the record. In this case, the statement that was given by the defendant ["You've got the badge, I guess you can"], which is agreed upon by really everyone...does not show by a preponderance of the evidence through clear and convincing testimony that valid consent was obtained.... This was a circumstance where when you look at the burden, and I kept coming back to that, when you look at the burden in the case and the fact that it is the government's burden to show by a preponderance of the evidence that...valid consent was obtained, that that is just not satisfied here.... In this case, you really didn't have much conduct to look at for context, and the condu ct that you did have to look at for context put us in sort of an odd situation with the review of the ticket.... Mr. Worley's response in this case, which is not really debated, was not an unequivocal expression of free and voluntary consent. In fact, it was... somewhat of the opposite, it was an expression of futility in resistance to authority.. (34)

Law Enforcement's Actions or Statements

Courts scrutinize the actions and statements made by law enforcement officers during the course of asking for consent to search. Police actions that courts have considered relevant when determining if the consent given was voluntary include whether the officers--

* told the individual of their right to refuse to consent; (35)

* were armed; (36)

* displayed weapons; (37)

* used force; (38)

* made threats; (39)

* asked for consent to search multiple times; (40)

* physically or verbally abused the individual; (41)

* identified themselves as law enforcement officers; (42)

* intimidated the individual; (43)

* detained or arrested the individual; (44)

* gave Miranda warnings to the individual; (45)

* claimed they had a warrant to conduct a search when they did not; 46

* made promises or inducements to the individual; (47) and

* issued a request to search that was plain enough to understand. (48)

It is important to understand that any single action or statement made by a law enforcement officer could result in the individual's consent being found involuntary, particularly because the government bears the burden of demonstrating the voluntariness of the consent.

An example of a case where the actions taken by law enforcement officers constituted coercion is the 1968 case of Bumper v. North Carolina. (49) In Bumper, four law enforcement officers went to the rural home of the 66-year-old grandmother of a rape suspect 2 days after the rape had occurred but before the suspect had been arrested. The officers told the woman that they had a warrant to search her house even though they actually did not possess one. The woman let the officers in the house, whereupon they found a rifle on the kitchen table that was later introduced at trial as evidence.

The trial court denied the defendant's motion to suppress the rifle, finding that the woman voluntarily consented to the search. While the state supreme court upheld the denial of the motion to suppress, the U.S. Supreme Court reversed, stating:

The issue thus presented is whether a search can be justified as lawful on the basis of consent when that consented has been given only after the official conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances. (50)

The Court emphatically stated that "[w]here there is coercion there cannot be consent." A law enforcement officer who claims authority to search a home with a warrant when there is no warrant is, according to the Court, essentially informing the individual that there is no right to object to the search.

In the more recent case of United States v. Ivy, (51) the U.S. Court of Appeals for the Sixth Circuit reversed the lower court's denial of the defendant's motion to suppress evidence obtained during the course of a search of a home. In Ivy, officers went to Ivy's home in search of a fugitive named Hall. The officers knocked on the door and asked Ivy if he was Hall. Ivy told the officers that he was not Hall. After that point, the testimony of the officers and defendant witnesses differ as to what happened. The district court credited the testimony of the officers regarding what happened when the police arrived at Ivy's house.

The appellate court found that the district court did not commit clear error in finding that Ivy consented to the officers entry into the house. However, the appellate court found the trial court's decision that Ivy's consent to search was voluntary to be clearly erroneous and suppressed the evidence found during the course of the unlawful search, stating that:

[gliven the overwhelming evidence of coercion and intimidation employed by the police in obtaining Ivy's signature on the consent form, we agree that the government did not meet its burden of proving by clear and positive testimony that Ivy's consent was voluntarily given. (52)

The appellate court found that comments made by the officers during the course of asking for consent to search the house constituted unlawful threats. More particularly, the officers told Ivy that if he did not sign the consent to search form, his girlfriend would be arrested and their small child would be taken away by the police. In addition to the threatening statements, the officers handcuffed Ivy's girlfriend's legs to the kitchen table, and, during the 1 1/2 hours in which they attempted to get either Ivy or his girlfriend to sign a consent to search form, they repeatedly took the young child away from Ivy's handcuffed girlfriend. After Ivy signed the consent form, the girlfriend was allowed to keep the child. The court stated that:

Courts have found that antagonistic actions by the police against a suspect's family taint the voluntariness of any subsequent consent.... This Court now finds that such hostile police action against a suspect's family is a factor which significantly undermines the voluntariness of any subsequent consent given by the suspect. (53)

CONCLUSION

The U.S. Supreme Court has determined that to decide whether a consent to search is voluntarily, courts are to examine the totality of the circumstances surrounding the consent. This article has provided a broad overview of the types of factors courts have considered as part of this determination. As this overview indicates, courts will consider all of the facts surrounding a consent to search, with no one particular fact necessarily being dispositive in deciding whether the consent was voluntary. As the U.S. Court of Appeals for the Sixth Circuit aptly stated in United States v. Worley, (54) "there is no 'magic' formula or equation that a court must apply in all cases to determine whether consent was validly and voluntarily given. Indeed, such an argument has been flatly rejected by this court and the Supreme Court." (55) Similarly, the U.S. Court of Appeals for the Eighth Circuit stated in United States v. Zamoran-Coronel, (56) that "[o]ur cases recount a variety of factors a court might consider in determ ining voluntariness, but recognize that such factors 'should not be applied mechanically.' The inquiry turns on the totality of the circumstances, which must demonstrate that 'the police reasonably believed the search to be consensual.'

Law enforcement officers frequently ask individuals if they will consent to a search of a dwelling, item, or object. Officers should be aware of the factors courts will consider when determining the voluntariness of the consent, the government's burden of proving voluntariness, and, ultimately, of the reasonableness requirement of the Fourth Amendment when seeking consent to conduct a search.

Endnotes

(1.) U.S. CONST. Amend. IV.

(2.) Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

(3.) United States v. Mattock, 415 U.S. 164 (1974).

(4.) Bumper v. North carolina. 391 U.S. 543 (1968).

(5.) 412 U.S. 218 (1973).

(6.) See, e.g., United States v. Mendenhall, 446 U.S. 544 (1980); United States v. Zamoran-Coronel, 231 F.3d 466 (8th Cir. 2000); United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir. 1996).

(7.) See, e.g., United States v, Mendenhall. 446 U.S. 544 (1980); United States v. LaGrone, 43 F.3d 332 (7th Cir. 1994); United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989).

(8.) See. e.g., United States v. Zapata, 997 F.2d 751 (10th Cir. 1993).

(9.) See, e.g., United States v. Martinez, 168 F.3d 1043 (8th Cir. 1999).

(10.) See, e.g., United States v. Dickerson, 975 F.2d 1245 (7th Cir. 1992)(consent to search given by naked defendant found voluntary); United States v. Mason, 966 F.2d 1488 (D.C. Cir. 1992)(consent to search voluntarily given by defendant who had been shot in the leg).

(11.) See, e.g., United States v. Zamoran-Coronel, 231 F.3d 466 (8th Cir. 2000); United States v. Brown, 102 F.3d 1390 (5th Cir. 1996); United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989).

(12.) 997 F.2d 751 (10th Cir. 1993).

(13.) Id. at 759.

(14.) 987 F.2d 1428 (9th Cir. 1993).

(15.) Id. at 1431.

(16.) See, e.g., United States v. Wilson, 895 F.2d 168 (4th Cir. 1990) (standing in public area); United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989) (on shoulder of major road).

(17.) See, e.g., United States v. Zapata, 997 F.2d 751 (10th Cir. 1993).

(18.) See, e.g., United States v. Zamoran-Coronel, 231 F.3d 466 (8th Cir. 2000) (presence of four law enforcement officers in a confined space does not necessarily amount to coercion).

(19.) See, e.g., United States v. Thomas, 93 F.3d 479 (8th Cir. 1996) (consent to search given at night); United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989) (consent to search given during daylight hours).

(20.) 93 F.3d 479 (8th Cir. 1996).

(21.) Id. at 486.

(22.) 140 F.3d 1328 (10th Cir. 1998).

(23.) Id. at 1329.

(24.) Id. at 1332.

(25.) See, e.g., United States v. Zamoran-Coronel, 231 F.3d 466 (8th Cir. 2000) (defendant signed consent form); United States v. Saadeh, 61 F.3d 510 (7th Cir. 1995); United States v. Castillo, 866 F.2d 1071 (9th Cir. 1988) (voluntary consent when defendant orally consented to search but refused to sign form).

(26.) See, e.g., United States v. LaGrone, 43 F.3d 332 (7th Cir. 1994).

(27.) See, e.g., Unites States v. Pollington, 98 F.3d 341 (8th Cir. 1996) (driver offered to open back door of motor home to facilitate search); United States v. White, 42 F.3d 457 (8th Cir. 1994) (defendant provided keys to cargo area of truck after giving verbal consent to search).

(28.) See, e.g., United States v. Worley, 193 F.3d 380 (6th Cir. 1999); United States v. Ladell, 127 F.3d 622 (7th Cir. 1997) ("search anywhere"); United States v. Brown, 102 F.2d 1390 (5th Cir. 1996) ("go ahead"); United States v. Hernandez, 5 F.3d 628 (2nd Cir. 1993) ("[N]o problem, go ahead and search the car.").

(29.) 906 F.2d 377 (8th Cir. 1990).

(30.) Id. at 381.

(31.) Id.

(32.) 193 F.3d 380 (6th Cir. 1999).

(33.) Id. at 383.

(34.) Id. at 384.

(35.) See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United States v. Zamoran-Coronel, 231 F.3d 466 (8th Cir. 2000) (officers have no obligation to inform subject of the right to refuse to consent to a search); United States v. Wilson, 895 F.2d 168 (4th Cir. 1990); United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989) ("The individual's knowledge of her right to refuse consent is only one factor in the totality of the circumstances inquiry."); United States v. Vasquez, 858 F.2d 1387 (9th Cir. 1988). But see United States v. Drayton, 231 F.3d 787 (11th Cir. 2000), cert. granted, 70 U.S.L.W. 3292 (2002). Relying on United States v. Washington, 151 F.3d 1354 (11th Cir. 1998), and United States v. Guapi, 144 F.3d 1393 (11th Cir. 1998), in Drayton the U.S. Court of Appeals for the Eleventh Circuit held that the district court erred in denying defendants' motion to suppress evidence obtained during a consent search of the clothing of two bus passengers. The court did not believe there were any signif icant factual differences between Drayton and Washington, stating that the court in Washington concluded "that the facts and circumstances surrounding the search indicated that 'a reasonable person...would not have felt free to disregard [the agents'] requests without some positive indication that consent could have been refused.' "Id. at 790.

(36.) See, e.g., United States v. Guiterrez, 92 F.3d 468 (7th Cir. 1996) (an officer being armed will not necessarily vitiate a subject's consent to search).

(37.) See, e.g., United States v. Martinez, 168 F.3d 1043 (8th Cir. 1999) (officer did not display a weapon when asking defendant for consent to search car); United States v. Morning, 64 F.3d 531 (9th Cir. 1995) (consent found voluntary; officers did not unholster their guns); United States v. Smith, 973 F.2d 1374 (8th Cir. 1992) (consent to search found voluntary in case where weapons were displayed during security sweep of home).

(38.) See, e.g., United States v. Erwin, 155 F.3d 818 (6th Cir. 1998) (officers did not make a show of force such as drawing weapons or touching defendant); United States v. Dewitt, 946 F.2d 1497 (10th Cir. 1991).

(39.) See, e.g., United States v. Carrate, 122 F.3d 666 (8th Cir. 1997); United States v. Morning, 64 F.3d 531 (9th Cir. 1995); United States v. Wilson, 895 F.2d 168 (4th Cir. 1990); United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989).

(40.) See, e.g., United States v. Kozinski, 16 F.3d 795 (7th Cir. 1994) (consent found voluntary where handcuffed defendant was advised of right to refuse consent and not asked for consent repeatedly or harassed).

(41.) See, e.g., United States v. Moreno, 897 F.2d 26 (2nd Cir. 1990); United States v. Brady, 842 F.2d 1313 (D.C. Cir. 1988).

(42.) See, e.g., United States v. Gordon, 173 F.3d 761 (10th Cir. 1999) (failure of officer to plainly identify himself is a factor to consider in determining whether consent was voluntarily given but was not dispositive).

(43.) See, e.g., United States v, Carrate, 122 F.3d 666 (8th Cir. 1997); United States v. Thomas, 93 F.3d 479 (8th Cir. 1996) (intimidating actions of the police are relevant in determining whether consent to search is voluntarily given).

(44.) See, e.g., United States v. Carrate, 122 F.3d 666 (8th Cir. 1997); United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir. 1996) (length and nature of detention is a factor in determining whether consent is valid).

(45.) See, e.g., United States v. LaGrone, 43 F.3d 332 (7th Cir. 1994); United States v. Moreno, 897 F.2d 26 (2nd Cir. 1990) (failure to inform defendant of Miranda warnings prior to consent search did not invalidate consent); United States v. Vasquez, 858 F.2d 1387 (9th Cir. 1988) (whether Miranda warnings were given is a factor to consider in evaluating the voluntariness of consent). Issues regarding when Miranda warnings should be given to a subject are beyond the scope of this article. A number of federal circuits have found that requesting consent to search does not constitute interrogation for purposes of Miranda. See United States v. Lagrone, 43 F.3d 332, 335 (7th Cir. 1994).

(46.) Bumper v. North Carolina, 391 U.S. 543 (1968).

(47.) See, e.g., United States v. Carrate, 122 F.3d 666 (8th Cir. 1997); United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989).

(48.) See, e.g., United States v. Gordon, 173 F.3d 761 (10th Cir. 1999); United States v. Erwin, 155 F.3d 818 (6th Cir. 1998).

(49.) 391 U.S. 543 (1968).

(50.) Id. at 548.

(51.) 165 F.3d 397 (6th Cir. 1998).

(52.) Id. at 402.

(53.) Id. at 403-404.

(54.) 193 F.3d 380 (6th Cir. 1999).

(55.) Id. at 387.

(56.) 231 F.3d 466 (8th Cir. 2000).

(57.) Id. at 469.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.