United States v. Avent

984 F. Supp. 961, 1997 U.S. Dist. LEXIS 18118, 1997 WL 713897
CourtDistrict Court, E.D. Virginia
DecidedNovember 13, 1997
DocketNo. CIV. A. 3:97CR200
StatusPublished
Cited by1 cases

This text of 984 F. Supp. 961 (United States v. Avent) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Avent, 984 F. Supp. 961, 1997 U.S. Dist. LEXIS 18118, 1997 WL 713897 (E.D. Va. 1997).

Opinion

MEMORANDUM

MERHIGE, District Judge.

This matter comes before the Court on Defendant’s Motion to Suppress. The motion has been fully briefed, an evidentiary hearing has been held, and the matter is now ripe for decision, be DENIED.

BACKGROUND

Defendant Avent has been indicted by a federal grand jury in a seven count Indictment for possession with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 841 (Counts One and Two), possession of cocaine and heroin in violation of 21 U.S.C. § 844 (Counts Three and Four), using/carrying a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count Five), and possession of a firearm by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Six), Count Seven seeks forfeitures.

FINDINGS OF FACT

On July 18,1997, two Richmond city police officers approached a group of men standing on a corner who immediately dispersed upon seeing the officers’ car. Avent did not run, but instead began to walk toward a white Acura before turning and walking the opposite direction. The police approached Avent and asked to speak with him. Avent agreed to talk. The conversation which ensued was recorded by a tape recorder carried by one of the officers. That recording and a transcript thereof were presented to the Court during the evidentiary hearing on this motion.

When the officers asked if Avent was carrying a gun or drugs, Avent lifted his shirt to reveal his waistband, showing that he did not have a gun. The officers asked if Avent had a weapon or drugs on him, and Avent said he did not. The officers then asked if Avent minded if they “checkfed].” Transcript of tape recording of the July 18, 1997 interaction (“Transcript”) p. 2. Avent consented to be searched for a weapon or drugs, but asked to have somebody watch the search. Transcript at p. 2. The officers then ordered Avent to spread his legs and place his hands on a car. The officers asked several times if the white Acura that Avent had approached earlier belonged to him, and he stated several times that he did not own the Acura.

During the search of Avent’s person, he placed his hands over his front pockets to indicate that he did not want his pockets searched. The transcript of the recording reflects that Avent said, “I ain’t got nothing, look. The check, I’m ready to go,” to which Officer O’Connor ordered Avent to, “Relax your hands. Relax your hands.” The officers found a set of ear keys in Avent’s pocket, and Avent testified on cross-examination that the officers had found the keys before he started covering his pockets with his hands. Upon finding the keys, the officers asked two more times whether Acura belonged to him, and Avent again denied that it did. However, Avent never consented to allow the officers to search the car. Instead, [964]*964he evaded questions, as the following dialogue demonstrates:

Officer O’Connor: So you don’t have a car in this area, right?
Avent: No.
Officer O’Connor: So if there’s a car around here that fits this key, you don’t care what we do with it, right?
Avent: I was getting ready to catch the bus.

Transcript at p. 5.

Upon approaching the Aeura, Officer O’Connor said “So you don’t mind if I search it then, right?” It appears from the recording and testimony that the officer did not wait for a response to this question before opening the ear door, and no response was given. Officer O’Connor looked through the window before opening the door and saw a bulge under the floor mat which he suspected to be guns or drugs. The car door apparently was not locked. The officer merely used the key to see that it fit which confirmed his suspicion that the car belonged to Avent. The officer found a gun and heroin under the floor mat and placed Avent under arrest.

ANALYSIS

Avent initially consented to talk with the officers, such that the initial questioning did not implicate the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (holding the Fourth Amendment is not implicated in a “police-citizen encounter,” where law enforcement officers approach someone in a public place and speak with him or ask the person to answer a few questions). It also appears that Avent initially consented, although reluctantly, to be searched for guns or drugs. A search conducted pursuant to valid consent is a well-recognized exception to the Fourth Amendment’s general warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Having determined that Avent initially voluntarily consented to the search, the inquiry is whether he subsequently withdrew that consent. As this Circuit has held, “a consent to a search is not irrevocable, and thus if a person effectively revokes ... consent prior to the time the search is completed, then the police may not thereafter search in reliance upon the earlier consent.” United States v. Lattimore, 87 F.3d 647, 651 (4th Cir.1996) (citations omitted). It appears that Avent attempted to revoke his consent by placing his hands over his front pockets in an attempt to stop the officers from searching them, and saying that he was ready to go. The recording of the encounter as reflected in the transcript shows this to be true because after Avent said “I’m ready to go,” the officer ordered Avent to “[r]elax your hands. Relax your hands.” Transcript at p. 3. However, at the hearing, Avent testified on cross-examination that the officers had already removed the keys to his car from him when he began covering his pockets. Therefore, the officers reasonably believed that Avent’s initial consent was still valid at the time they took the keys from his pocket. As the Fourth Circuit has held, “[w]hen a private citizen voluntarily consents to interrogation or a search by police officers, however, he cannot later claim, when criminal conduct is uncovered, that his Fourth Amendment rights were violated. While consent generally has its limits, a consensual search or seizure within those limits does not implicate constitutional rights.” United States v. McFarley, 991 F.2d 1188, 1191 (4th Cir.1993).

Avent’s consent to be searched for guns and weapons may have limited the scope of the officers’ search to items of that nature, such that the seizure of his car keys was a violation of his Fourth Amendment rights. Like the determination of the voluntariness of the consent to a search, the parameters of a consensual search is a factual issue that must be determined by considering the totality of the circumstances surrounding the search. See Schneckloth v. Bustamonte,

Related

United States v. Barrington
210 F. Supp. 2d 773 (E.D. Virginia, 2002)

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Bluebook (online)
984 F. Supp. 961, 1997 U.S. Dist. LEXIS 18118, 1997 WL 713897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-avent-vaed-1997.