Recording blood spatter evidence requires little training. Officers and technicians do not have to learn the trigonometric formulas and calculations involved in interpretation. Measurement training does not require weeks of classroom lectures and months of on-the-job experience. Instead, law enforcement personnel can learn the measurement and photography procedures in 2 days at police academy classes, college criminal justice courses, or in-service seminars.
How much knowledge do officers and crime scene technicians need to preserve blood spatter evidence? First and foremost, they must recognize the importance of the evidence—equal to that of fingerprints, shell casings, bullet holes, or murder weapons. Next, they need to understand that blood spatter indicates the direction from which it came. Then, they must learn how to measure the length and width of a single blood drop, how to tell the direction of travel (visible with the naked eye), and how to find the distance from the drop to the point from which the blood came (also visible with the naked eye). Finally, they need to record those measurements. A form with columns can create a permanent record of the blood spatter evidence at a crime scene. These measurements and the photographs are all an expert requires to analyze the evidence at a later time.
A basic understanding of blood spatter analysis allows the first responding officer, crime scene technician, or detective to assist in correctly collecting and preserving blood stain data at the scene. The principles and procedures are not complicated. The interpretation of blood spatter patterns at crime scenes may reveal critically important information, such as the positions of the victim, assailant, and objects at the scene; the type of weapon used to cause the spatter; the minimum number of blows, shots, or stabs that occurred; and the movement and direction of the victim and assailant after bloodshed began. It also may support or contradict statements given by witnesses.1 The analyst may use blood spatter interpretation to determine what events occurred; when and in what sequence they occurred; who was or was not present; and what did not occur.2
Officers or crime technicians can record the measurements of the stains needed and leave it to the experts to interpret them. However, officers and technicians should have a basic idea of what the blood spatter means, including—
Law enforcement personnel can use a form to
record the distances of the point of convergence
(POC) from two reference points, the same ones
used to position other objects in the scene. They
enter the width and length of the individual drops,
as well as the distance to the POC, and then place
the numbers of the photographs taken in the last
column. They can use either metric or English
measurement. In the sample below, for the point
of convergence, the distance from reference point
1 equals 156 cm and from reference point 2 equals
350 cm.
The velocity of the blood spatter when it strikes a surface is, within certain limitations, a strong and reasonably reliable indicator of the speed of the force that set the blood in motion in the first place. The classification of the velocity (whether high, medium, or low) is that of the initial force causing the blood to move, rather than the speed of the blood itself as it moves, and is measured in feet per second (fps). High velocity blood spatter, for instance, may have come from a gunshot wound inflicted by a bullet moving at 900 fps, whereas medium velocity may have resulted from a spurting artery or a blunt instrument striking the already bloody head or limb of a victim, and low velocity blood may have dripped from a wound or blood-soaked item.
High velocity blood spatter is produced by an external force greater than 100 fps. The stains, sometimes referred to as a mist, tend to be less than 1 millimeter. Usually created by gunshots or explosives, high velocity patterns also may result from industrial machinery or even expired air, such as coughing or sneezing. In any case, the spatter tends to come from tiny drops of blood propelled into the air by an explosive force. High velocity droplets travel the shortest distance because of the resistance of the air against their small mass.
An external force of greater than 5 fps but less than 25 fps causes medium blood spatter. The stains generally measure 1 to 3 millimeters. Blunt or sharp trauma, often from knives, hatchets, clubs, fists, and arterial spurts, can produce such stains.
Most medium velocity stains found at crime and accident scenes form patterns created by blood flying from a body to a surface as a result of blunt or sharp trauma or the body colliding with rounded or edged surfaces. It may result from a punch, stabbing, or a series of blows or, in the case of an accident, the body striking surfaces inside or outside a vehicle. Any object that blocks the blood from falling on the surface where it would have landed, including the victim or the attacker’s body or a piece of furniture moved to stage the scene, creates a void space in the stain.
Low velocity blood spatter is created by an external force less than 5 fps (normal gravity) with the stains generally 3 millimeters and larger. It usually results from blood dripping from a person walking or running or from a bloody weapon. Dripping blood often falls at a 90-degree angle and forms a 360-degree circumference stain when it hits a flat surface, depending, of course, on the texture of the surface. Investigators also may find low velocity blood spatter in the trail of an individual who is bleeding with larger pools of blood indicating where the person paused.
Experiments with blood have shown that a drop of blood tends to form into a sphere, rather than a teardrop, when in flight. Fresh blood is slightly more viscous than water and, like water, tends to hold the spherical shape in flight.
This spherical shape of blood in flight is important for the calculation of the angle of impact of blood spatter when it hits a surface. That angle determines the point from which the blood originated, called the point of origin (PO).
When a drop of blood strikes a flat surface, the diameter of the drop in flight will be the same as the width of the spatter on the surface. The length of the spatter will be longer, depending on the angle at which the drop hit.
A fan-shaped blood pattern found on a floor as the result of a gunshot wound to the head can illustrate the point of convergence. When blood disperses in various directions from a wound, the blood drops tend to fan out. As the drops strike the floor, they elongate into oval shapes. An imaginary line drawn lengthwise through the middle of the oval shape will trace back to the area where the blood came from. Lines drawn through several of the blood spatters will cross at the point where the person was standing, called the point of convergence. Somewhere above that point, the blood originated. If the victim was shot in the head, it may be 4 to 6 feet (roughly the height of an average person) above that point.
Figure 1. Side view of blood drop in air, and then striking a flat surface.
Figure 2. View from above of blood spatter on floor showing direction of travel.
Figure 3. Lines through the central axes of the individual stains cross at the point of convergence.
Blood spatter analysis experts can develop important information from the patterns of blood at a crime scene. First-responding officers, crime scene technicians, and detectives can learn to photograph and preserve the measurements of blood spatter evidence at crime and accident scenes, gleaning a great deal of information without becoming experts themselves. If they properly photograph and accurately measure the length and width of the individual blood spatters and the distance from each spatter to the point of convergence, they can provide the expert analysts with data to make the necessary calculations and draw their conclusions. If agencies fail to obtain measurements and photographs, they risk losing critical information forever. Therefore, the collection of blood spatter evidence must be brought into today’s world of technological advances and treated as important, but common, crime scene evidence easily preserved by law enforcement personnel who have acquired the necessary skills with a minimum of time and effort.
Mr. Akin is a licensed professional investigator in Austin, Texas.
Revoking
Consent
to Search
By JAYME W. HOLCOMB, J.D.
The Fourth Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....”1 Law enforcement officers, however, do not need probable cause or a warrant to conduct a search if a person with proper authority voluntarily consents to the search.2 The U.S. Supreme Court, on a number of occasions, has stated that an individual may limit the scope of a consent to search by the terms of the authorization.3 One of the most obvious ways that an individual may limit the consent to a search is by revoking the consent.
This article explores the issue of an individual’s withdrawal of consent to search previously given to law enforcement officers. More particularly, the article discusses when consent can be withdrawn; what actions or statements courts have found sufficient or insufficient, whichever the case, to constitute a revocation; the relevance of an officer having reasonable suspicion or probable cause prior to revocation; and whether a revocation of consent can be considered by law enforcement officers in determining the existence of reasonable suspicion or probable cause to conduct a search or seizure.
© Mark C. Ide
Ms. Holcomb serves as chief of the Legal
Instruction Section, DEA Training Academy.
Withdrawal of Consent
Unlike situations involving an individual limiting the scope of a consent search when the consent is first given, questions involving the withdrawal of consent arise after an individual already has consented to the search. The prevailing view4 is that an individual may revoke a previously given consent to search at any time prior to the discovery of the items sought.5 In United States v. Dyer,6 the U. S. Court of Appeals for the Seventh Circuit stated that “[C]learly a person may limit or withdraw his consent to a search and the police must honor such limitations. But, where a suspect does not withdraw his valid consent to a search for illegal substances before they are discovered, the consent remains valid and the substances are admissible as evidence.”7
The predominant view that an individual may revoke previously given consent to search is not, however, without exceptions. For example, revocation of consent to search generally is not recognized in primarily two contexts—airport passenger screening and prison visitation.8
For example, in United States v. Herzbrun,9 Herzbrun had gone to the Orlando airport, purchased a ticket, and walked to the security checkpoint where signs were posted informing passengers that if they passed through the checkpoint, they would be searched. When Herzbrun went through the checkpoint, X-ray machine security personnel could not identify a dark mass in the bottom of his bag. Herzbrun told security personnel that he had clothing at the bottom of the bag. However, when the screener opened the bag and felt inside, she could tell that the mass was not clothing.
At that point, Herzbrun told the screener to stop searching the bag and shut it on the screener’s hand. Police were called to the scene, and Herzbrun was informed that to board the plane, the bag would have to be searched. Herzbrun then left the checkpoint and went to a taxi where officers placed him under arrest. Subsequently, a drug detection dog alerted to the bag, and the officers obtained a search warrant. A search of the bag revealed the presence of a pound of cocaine. The U.S. Court of Appeals for the Eleventh Circuit stated that Herzbrun “had no constitutional right to revoke his consent to a search of his bag once it entered the X-ray machine and he walked through the magnetometer.”10
Other courts also have found that those who present “themselves at a security checkpoint thereby consent automatically to a search, and may not revoke that consent if authorities elect to conduct a search.”11 Practically speaking, therefore, to avoid being searched at an airport screening checkpoint, an individual must choose not to fly before putting baggage down on the X-ray machine at the screening checkpoint. Another court taking this position has reasoned “a rule allowing a passenger to leave without a search after an inconclusive X-ray scan would encourage airline terrorism by providing a secure exit where detection was threatened.”12 While a few courts have expressed the view that an individual can withdraw from the screening process at any time,13given the heightened security concerns of today, it is likely that this view would no longer have much support.
The same rationale has been applied in the prison context. At least one court has held that once a prison visitor who is forewarned that all visitors will be searched and consents to the search, that consent cannot be withdrawn once the search begins.14 That court reasoned
Defendant received fair notice that he would be thoroughly searched. After all, he was seeking to visit an inmate in a prison and he surely knew that the aims of the search to which he consented was first to deter contraband smuggling, and then, if deterrence failed, to detect the contraband....
Put another way, a rule allowing consent to be withdrawn at any time would encourage contraband smuggling into prisons by providing a secure escape for a smuggler whenever the search threatened to detect the contraband.15
Another issue that arises within the context of an individual revoking consent to search is whether law enforcement officers must conduct a consent search in a manner or time frame that gives the individual an opportunity to revoke the consent. Officers are not required to conduct consent searches in plain view of an individual.16 For example, the U.S. Court of Appeals for the Fifth Circuit “has specifically rejected the notion ‘that enforcement officials must conduct all searches in plain view of the suspect, and in a manner slowly enough that he may withdraw or delimit his consent at any time during the search.’”17
Actions or Statements Sufficient to Constitute Revocation
The U.S. Supreme Court has ruled that a court reviewing whether an individual voluntarily consented to a search must consider the totality of the circumstances surrounding the consent.18 The government has the burden to prove that a subject voluntarily consented to a search.19 While an individual can limit the scope of a consent search by law enforcement,20 the individual has the burden to express that limitation.21 To carry the burden of limiting or revoking consent to search, an individual’s withdrawal must be an “unequivocal act or statement of withdrawal.”22
An individual may revoke a validly given consent for law enforcement officers to search through statements, actions, or a combination of the two. For example, in United States v. Bily,23 the court found that Bily’s statement to agents of “That’s enough, I want you to stop”24 was an immediate revocation of consent. In United States v. Ho,25 the U.S. Court of Appeals for the Fifth Circuit found that Ho consented to a search of his person and a portfolio he carried. The officer testified that Ho’s subsequent actions in struggling to retrieve the portfolio from the officer during the course of the search made it obvious to the officer that Ho did not want the officer to look at the portfolio any longer. The officer found blank white plastic cards that were the size and shape of a credit card and counterfeit travelers checks in the portfolio. The court found that Ho’s struggle constituted a withdrawal of his earlier consent to search the portfolio.26
© Mark C. Ide 
Actions or Statements Insufficient to Constitute Revocation
In many cases, defendants will argue that their actions or statements made after they have given a law enforcement officer consent to conduct a search were sufficient to constitute an effective withdrawal of consent. Courts must determine whether the defendant’s statements or actions were clear and unequivocal and, thus, a sufficient revocation. Often, the courts reject the defendant’s claim.27
An example of a case in which an individual’s actions were insufficient to constitute a withdrawal of consent is the U.S. Court of Appeals for the Fourth Circuit case of United States v. Lattimore.28 In this case, a law enforcement officer stopped Lattimore for speeding. Lattimore gave oral consent to a search of his car. However, when the officer presented Lattimore with a written consent to search form to sign, he expressed concern about signing the form. He eventually signed the form, and the officer found cocaine, razor blades, a scale, and plastic bags during the search.
In examining the issue of whether Lattimore’s expression of concern operated to revoke his original consent to search, the court stated, “[W]e do not hesitate to conclude that the search was proper because Lattimore never withdrew his oral consent to the search of his automobile. Indeed, it is undisputed that at no time did Lattimore expressly withdraw his consent for the search.”29 The court also noted that “[i]t is clear, however, that a refusal to execute a written consent form subsequent to a voluntary oral consent does not act as an effective withdrawal of the prior oral consent.”30 In Lattimore, the court found that even if he had refused to sign the written consent to search, the officer still could have searched the car on the basis of the valid oral consent.31 The Lattimore court concluded by stating that “if Lattimore’s refusal to sign the written consent form would not be adequate to affect a withdrawal of this consent, certainly his question concerning the form coupled with his subsequent signature of it cannot have been.”32
Similarly, in United States v. Gray,33 the U.S. Court of Appeals for the Eighth Circuit found that the defendant did not revoke consent to search a vehicle. In Gray, an officer pulled Gray over for weaving and following another car too closely. After issuing a citation and obtaining lies and conflicting stories from both the driver and the passenger, the officers obtained consent to search the vehicle from both occupants.
During the search, the officer noted that the car contained an excessive amount of luggage for the stated duration of the trip. Additionally, the officer found loose rivets in the rear of the car and some carpeting that had been spot glued down. After initially finding no contraband in the car, the officer’s drug dog alerted to the vehicle, and the officer found 17.5 pounds of cocaine in the firewall.
During the course of the search, Gray and the passenger began to express concern about the length of time of the search.
Gray testified that he stated “[t]his is ridiculous” and asked “how long the search was going to take.”34 After these comments, the officer had a second conversation with Gray wherein the officer testified that Gray merely asked that the search be speeded up and did not withdraw consent.Gray, however, testified that he again voiced concern over the length of the search and that he and his passenger were “ready to go now.” The court stated that
The district court found that Gray and Lawrence made “protests to leave,” but concluded that “there was no specific request to leave, and under the circumstance,... [the officer] was reasonable in continuing the search beyond the initial contact at 11:30.” The district court further found that when the defendants became “more strident about their desire to leave,” [the officer] decided to use Rudy, and only about 9 or 10 minutes elapsed between the time Gray first began objecting and the time Rudy alerted.... At most, Gray’s first conversation with [the officer] amounted to an expression of impatience, which is not sufficient to terminate consent.35
Courts also have found that an individual’s actions or statements have been insufficient to constitute withdrawal of consent when the individual showed reluctance in admitting that he was carrying keys to luggage;36 reached into the bag he had been carrying as the officer began to search it;37 remained silent after being told that the driver consented to a search of a car while acknowledging ownership of a bag in the vehicle;38 stated that he did not know anything about the existence of a compartment in the car he was driving;39 and was placed under arrest.40
© Mark C. Ide
Reasonable Suspicion or Probable Cause Established Prior to Revocation
An officer may develop reasonable suspicion or probable cause prior to or during the revocation of the consent to search.41 For example, in United States v. Black,42 two officers working in an airport approached a man, identified themselves as police, and asked if he would talk with them. The officers determined that the man was traveling on a first-class, one-way ticket purchased for cash under a fictitious name. The officers asked the man for consent to search his travel bag, and he agreed to the search. The man reached into the bag, pulled out a book, and handed it to one of the officers. The officer then reached into the bag, pulled out a shaving kit, looked through the kit, and placed it on the floor next to the bag. The officer again reached into the bag, grasped a shirt, and began to take the shirt out of the bag. At this point, the other officer could see a clear plastic bag containing a white powder wrapped in the folds of the shirt. As the searching officer’s hand reached the top of the open bag, the man grabbed the officer’s wrist while pulling his hand out of the bag and told him not to search any more. When the man took the officer’s hand out of the bag, the bag containing the white powder fell out of the shirt to the bottom of the travel bag. The searching officer saw the plastic bag containing the white powder in plain view in the bottom of the travel bag and arrested the man.43
With regard to the attempted revocation of consent to search in this case, the court stated that
By the time that [the man] revoked his consent to the search of his travel bag, [the officer] was in the process of withdrawing the shirt in which the cocaine was wrapped from the travel bag. [The officer] could see the bag containing the white powder wrapped in the shirt and [the man’s] clumsy and mistimed attempt to pull [the officer’s] hand out of the bag was itself the cause of the cocaine coming into [the officer’s] view.44
Even if an individual’s statements or actions are sufficient to withdraw consent to search, officers may have established probable cause prior to the revocation. In United States v. West,45 a deputy sheriff stopped an individual for speeding on a highway. During the course of the traffic stop, the deputy noticed that the individual’s hands were shaking and there was a distinct odor of air freshener about the car. The deputy asked the individual for consent to search the vehicle. After obtaining consent to search, the deputy took the car keys, opened the trunk, and detected the odor of methamphetamine. The individual stated that the deputy could not search a locked briefcase found in the trunk, but otherwise did not limit the search of the car in any way. The deputy detected the odor of methamphetamine coming from a zippered bag in the trunk. The bag had a lock on it but it was not fully closed. The deputy put his fingers through an opening in the bag and could feel plastic and a package he believed contained methamphetamine. The deputy placed the individual under arrest.46
The court found that the individual had given valid consent for the deputy to search the car. The defendant argued that consent to search had been withdrawn prior to the deputy finding the contraband. The U.S. Court of Appeals for the Tenth Circuit concluded that
We decline to decide whether West’s consent to search the car was revoked by him refusing permission to open the locked briefcase because [the deputy], in the course of the consent search, acquired probable caused to search the zippered bag, rendering consent by West irrelevant.47
The West court noted that it is well established that probable cause to search a car can be developed during the course of a traffic stop even if it did not exist at the time the car was initially stopped for a traffic violation.In West, the court concluded that the deputy had probable cause to search the bags in the trunk when he smelled a strong odor of methamphetamine as soon as he opened the trunk.48
Revocation as a Factor in Establishing Reasonable Suspicion or Probable Cause
If reasonable suspicion or probable cause to search or seize has not been established prior to an individual’s withdrawal of consent, the reliance on the withdrawal of consent as a factor to establish the existence of reasonable suspicion or probable cause becomes an issue. The U.S. Court of Appeals for the District of Columbia has stated that “[t]he constitutional right to withdraw one’s consent to a search would be of little value if the very fact of choosing to exercise that right could serve as any part of the basis for finding the reasonable suspicion that makes consent unnecessary.”49 And yet, another court addressing the issue noted that “[m]ere refusal to consent to a stop or search does not give rise to reasonable suspicion or probable cause.”50
Even though the revocation of consent to search generally cannot be used to establish reasonable suspicion or probable cause, actions taken by an individual after withdrawing consent to search have been found to contribute to the existence of reasonable suspi-cion.51 Additionally, in the U.S. Court Appeals for the Fourth Circuit decision of United States v. Wilson,52 the court stated that “[w]e are not prepared...to rule that the form of denial never can be included as a factor to be considered in determining whether an investigative stop was justified.”53 With regard to this statement, one judge noted
While the Fourth Circuit did indeed refuse to establish any per se rule that the way consent is denied can never be considered in the reasonable suspicion calculus, it also refused to permit the manner of declining consent to be the factor that “pushes the situation into the realm of ‘reasonable suspicion.’” I agree with the Fourth Circuit that in all but the most extraordinary circumstances the police should have sufficient objective evidence for an investigative detention independent of the refusal or withdrawal of consent and the manner in which either is executed.54
Finally, while the revocation of consent to search may generally not be used to establish reasonable suspicion or probable cause, such a revocation can be used to demonstrate that an individual understood that he had the right to refuse to consent to a search by police. For example, in United States v. Matau, 55 the court stated that “Matau’s understanding that he could refuse consent is evidenced by his withdrawal of his earlier consent to search his bag.”56
Conclusion
The predominant legal view is that an individual can limit the scope of a consent to search by revoking the consent given to law enforcement officers. However, within certain contexts, such as airport screening, the prevailing view is that an individual cannot withdraw consent to search once consent has been given and the search has begun. While an individual can withdraw consent either verbally or through action, such a revocation must be clear and unequivocal. Therefore, law enforcement officers must be aware of both the context in which the consent to search is withdrawn and the exact manner in which the individual revoked consent to search. Officers should remember that in any consent to search situation, a court will analyze the totality of the circumstances surrounding the consent to search and the reasonableness of the officer’s actions. Additionally, officers need to be aware that an ambiguous withdrawal of consent to search is not effective to constitute a true withdrawal.
Law enforcement officers may establish reasonable suspicion or probable cause during the course of a consent search to conduct a subsequent search or seizure. Therefore, officers should focus on exactly what they are observing during the course of the search to be able to articulate what specifically was seen and why it may contribute to a finding of reasonable suspicion or probable cause in case an individual revokes consent to search prior to finding the object of the search. As with any consent search issue, officers must be extremely diligent about providing extensive detail regarding what they did and said and what the individual did and said during the course of obtaining consent to search, the search itself, any attempted revocation or withdrawal of consent, and after the search is finished.
Endnotes
1 U.S. CONST. Amend. IV.
2 Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
3 Id.; Florida v. Jimeno, 500 U.S. 248, 252 (1991).
4 See United States v. Springs, 926 F.2d 1330, 1334 (D.C. Cir. 1991); United States v. Black, 675 F.2d 129 (7th Cir. 1982); United States v. Ward, 576 F.2d 243, 244 (9th Cir. 1978); United States v. Seely, 570 F.2d 322, 323 (10th Cir. 1978); Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977). See also 3 Wayne R. LaFave, Search and Seizure § 8.1(c) (3d ed. 1996).
5 In contrast, the contrary and distinctly minority view articulated in two old state cases is that once an individual consents to a search, that consent cannot subsequently be withdrawn. Smith v. Commonwealth, 246 S.W. 449 (Kent. 1923); People v. Kennard, 488 P.2d 563 (Colo. 1971). See also 3 Wayne R. LaFave, Search and Seizure § 8.1(c) (3d ed. 1996).
6 784 F.2d 812 (7th Cir. 1986).
7 Id. at 817. See also United States v. Cady, 22 C.M.A. 408 (1973). “We see no reason to hold that a consent to search must be unlimited in scope. Neither do we find any reason to hold that a consent, once given may not be withdrawn. It is true that the contrary view has been expressed.”
8 There also is authority stating that “when an employee as a condition of employment has agreed to be searched by his employer, it is questionable at best whether the employee may freely withdraw his consent, short of resignation.” United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991).
9 723 F.2d 773 (11th Cir. 1984).
10 Id. at 778.
11 Id. at 776. See also United States v. McKennon, 814 F.2d 1539 n.12 (11th Cir. 1987); United States v. Wehrli, 637 F.2d 408 (5th Cir.), cert. denied, 452 U.S. 942 (1981); United States v. DeAngelo, 584 F.2d 46, 48 (4th Cir. 1978), cert. denied, 440 U.S. 935 (1979); United States v. Cyzewski, 484 F.2d 509 (5th Cir. 1973), cert. denied, 415 U.S. 902 (1974); United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973); United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991 (1972).
12 United States v. Pulido-Baquerizo, 800 F.2d 899, 902 (9th Cir. 1986). See also United States v. Haynie, 637 F.2d 227, 230 (4th Cir. 1980) (“It appears to us that a rule under which consent to a screening search is limited by the availability to withdraw at any time could only encourage attempted hijackings by providing a secure exit should detection be threatened.”).
13 United States v. Freeland, 562 F.2d 383 (6th Cir. 1977), cert. denied, 434 U.S. 957 (1977) (defendant could have withdrawn consent to search checked baggage); United States v. Homburg, 546 F.2d 1350 (9th Cir. 1976), cert. denied, 431 U.S. 940 (1977).
14 United States v. Spriggs, 827 F. Supp. 372 (E.D. Va. 1993), aff’d, 30 F.3d 132 (4th Cir. 1994).
15 Id. at 375.
16 See, e.g., United States v. George, 987 F.2d 1428 (9th Cir. 1993); United States v. Lechuga, 925 F.2d 1035, 1041 (7th Cir. 1991).
17 United States v. Dominguez, 911 F. Supp. 261, 262 (S.D. Tex. 1995) (quoting United States v. Rich, 992 F.2d 502, 507 (5th Cir. 1993)).
18 Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
19 Bumper v. North Carolina, 391 U.S. 543 (1968).
20 Florida v. Jimeno, 500 U.S. 248 (1991).
21 United States v. Kim, 27 F.3d 947, 957 (3rd Cir. 1994), cert. denied, 513 U.S. 1110 (1995).
22 United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2001) (citing United States v. Martel-Martines, 988 F.2d 855, 585 (8th Cir. 1993)); United States v. Lyton, 161 F.3d 1168, 1171 (8th Cir. 1998).
23 406 F. Supp. 726 (E.D. Pa. 1975).
24 Id. at 726.
25 94 F.3d 932 (5th Cir. 1996).
26 Id. See also United States v. Fletcher, 91 F.3d 48 (8th Cir. 1996) (defendant revoked consent to search luggage after being informed he could withhold consent); United States v. Carter, 985 F.2d 1095 (D.C. Cir. 1993) (defendant revoked consent to search a brown paper bag he carried when he grabbed the bag from the officer and later verbally confirmed that he did not want the officer to search the bag). But see United States v. Flores, 48 F.3d 467 (10th Cir. 1995) (The defendant consented to a search of a car at an immigration checkpoint and opened the trunk. After being asked to step away from the car during the search, the defendant shut the trunk. The defendant reopened the trunk after being told that the search had not been completed. After the defendant reopened the trunk and the search resumed, officers found marijuana in the door frame. The court stated that “[b]ecause we hold that defendant voluntarily consented to the continued search of her car by reopening the trunk, we assume, without deciding, that defendant revoked her initial consent by closing the trunk.”); United States v. Akins, 995 F. Supp. 797, 807 (M.D. Tenn. 1998) (Once the defendant invoked his Fifth Amendment right to counsel, the defendant “effectively withdrew his consent to speak with the officers, and by extension his consent to be searched.”); Metcalf v. Long,615 F. Supp. 1108, 1117 (D. Del. 1985) (The defendant’s statement that “If you want to go in there, kick the door in” is not an explicit withdrawal of consent, but its import is apparent. The court found “that even if defendant’s version of the facts was correct and Metcalf initially consented to the search, his later noncooperation with the officers indisputably indicates that his consent was no longer effective.”).
27 See, e.g., United States v. Ross, 263 F.3d 844 (8th Cir. 2001); United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991).
28 87 F.3d 647 (4th Cir. 1996).
29 Id. at 651.
30 Id. (citing United States v. Thompson, 876 F.2d 1381, 1384 (8th Cir.), cert. denied, 493 U.S. 868 (1989)); United States v. Castillo, 866 F.2d 1071, 1081-82 (9th Cir. 1988); United States v. Boukater, 409 F.2d 537, 539 (5th Cir. 1969)).
31 For additional information regarding this issue, see Jayme W. Holcomb, “Obtaining Written Consent to Search,” FBI Law Enforcement Bulletin, March 2003, 26.
32 United States v. Lattimore, 87 F.3d 647, 652 (4th Cir. 1996).
33 369 F.3d 1024 (8th Cir. 2004).
34 Id. at 1026.
35 Id. at 1029. See also United States v. Ross, 263 F.3d 844 (8th Cir. 2001).
36 United States v. Brown, 884 F.2d 1309, 1311 (9th Cir. 1989), cert. denied, 493 U.S. 1025 (1990).
37 United States v. Joseph, 892 F.2d 118, 122 (D.C. Cir. 1989).
38 United States v. West, 321 F.3d 649 (7th Cir.), cert. denied, 124 S. Ct. 385 (2003).
39 United States v. Bullock, 877 F. Supp. 270 (E.D. Va. 1995), aff’d, 94 F.3d 896 (4th Cir. 1996).
40 United States v. Mitchell, 82 F.3d 146 (7th Cir.), cert. denied, 519 U.S. 856 (1996).
41 See, e.g., United States v. Booker, 186 F.3d 1004 (8th Cir. 1999) (probable cause established prior to revocation of consent to search); United States v. Newsome, 124 F. Supp. 2d 1301 (E.D. Tex. 2000) (reasonable suspicion to detain defendant while awaiting arrival of drug dog established prior to withdrawal of consent to search).
42 510 F. Supp. 989 (N.D. Ill. 1981), aff’d, 675 F.2d 129 (7th Cir. 1983). 43 Id. at 992.
44 Id. at 993.
45 219 F.3d 1171 (10th Cir. 2000).
46 Id. at 1174.
47 Id. at 1177.
48 Id. at 1179. Under the motor vehicle exception to the search warrant requirement, police may search a motor vehicle without a search warrant if the search is supported by probable cause. California v. Acevedo, 500 U.S. 565 (1991); United States v. Ross, 456 U.S. 798 (1982).
49 United States v. Carter, 985 F.2d 1095, 1097 (D.C. Cir. 1993) (citations omitted). See also United States v. Skidmore, 894 F.2d 925, 927 (7th Cir. 1990) (“Skidmore is correct in arguing, and the government does not contest, that a law enforcement official cannot consider Skidmore’s refusal to consent as a factor in the official’s determination of reasonable suspicion.”).
50 United States v. Fuentes, 105 F.3d 487, 490 (9th Cir. 1997). See also United States v. Fletcher, 91 F.3d 48, 51 (8th Cir. 1996) (“under these facts, no adverse inference can be drawn from Fletcher’s revocation of his consent to search his bag.”); United States v. Taxacher, 902 F.2d 867, 872 n.6 (11th Cir. 1990).
51 United States v. Carter, 985 F.2d 1095, 1097 (D.C. Cir. 1993) (“Carter had withdrawn his consent when he retook the bag. His subsequent offer to show Detective Buss the food did not constitute a second consent, for he did not propose to allow the police officer to search the bag but instead indicated that he would himself show the officer the food he said it contained. For us to countenance the officer’s reasonable suspicion based upon such post-withdrawal conduct in no way bears upon the extent to which reasonable suspicion may be based upon “the manner” in which consent is withdrawn.”).
52 953 F.2d 116 (4th Cir. 1991).
53 Id. at 126.
54 United States v. Carter, 985 F.2d 1095, 1100 (D.C. Cir. 1993) (Wald, J., dissenting).
55 191 F. Supp. 2d 1173 (D. Hawaii 2002).
56 Id. at 1184.
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.
The Bulletin Notes
Law enforcement officers are challenged daily in the performance of their duties; they face each challenge freely and unselfishly while answering the call to duty. In certain instances, their actions warrant special attention from their respective departments. The Bulletin also wants to recognize those situations that transcend the normal rigors of the law enforcement profession.
Officer Russell
Officer Pickreign
Officers James Russell and Robert Pickreign of the Malone, New York, Police Department responded to a residence where a man was preparing to hang himself, distraught over a recently ended romance. After finding the front door locked, the two officers entered through the rear. Once inside, Officers Russell and Pickreign announced their presence and cautiously approached the man, who was upstairs standing on a stepladder with a noose around his neck. The individual was sobbing, with family photos spread across the floor below him. The two officers talked with the man as they drew closer to him. After seeing the individual look down at the pictures and then slowly step off the ladder in an attempt to take his life, Officer Pickreign immediately grabbed him and Officer Russell jumped on the ladder and cut through the rope. Officer Pickreign lowered the man to the ground and secured his hands. The two officers then carefully removed the noose from the individual’s neck, handcuffed him, and ensured that he received safe transport to the hospital for medical care. The attentive and professional actions of these two officers prevented a tragic situation.
Officer Allen
Officer Eric Allen of the Colonial Heights, Virginia, Police Department responded to a call involving a young girl who had fallen through ice-covered water that filled a deep gravel pit. He arrived in time to see the child’s father, in an obvious panic, jump into the water and become a second victim in need of rescue. Immediately, Officer Allen climbed down a steep hill to the water’s edge, grabbed onto a tree, and offered his free arm to the girl. After pulling the child out of the water and placing her up the hill, away from the water’s edge, Officer Allen rescued the father. Because of the composure and
quick thinking of this officer, two lives were
saved from certain drowning in frigid water.
Nominations for the Bulletin Notes should be based
on either the rescue of one or more citizens or arrest(s)
made at unusual risk to an officer’s safety. Submissions
should include a short write-up (maximum of 250
words), a separate photograph of each nominee, and a
letter from the department’s ranking officer endorsing
the nomination. Submissions should be sent to the
Editor, FBI Law Enforcement Bulletin, FBI Academy,
Madison Building, Room 201, Quantico, VA 22135.
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