Court of Appeals Rules That Consent to Search Backpack, Given after Repeated Requests, Was Not Voluntary – North Carolina Criminal Law

Last month, the Court of Appeals ruled that police coerced a suspect into agreeing to let them search his backpack. Many of the traditional hallmarks of coercion, such as threatening language or the ،ndi،ng of weapons, were absent in this case, making it noteworthy for officers, prosecutors, and defense attorneys alike. The case is State v. Wright, __ N.C. App. __, 2023 WL 5925671 (N.C. Ct. App. Sept. 12, 2023), and this post discusses it in greater detail than the summary previously posted on the blog.

The case arose on a cold January night in Charlotte. Two officers were on routine patrol when one received a tip from a “known informant” that a person was carrying an illegal gun on Phifer Avenue. The informant gave a detailed description of the person and said that he was on a bicycle. The officers went to Phifer Avenue and noticed the defendant, w، matched the informant’s description and was on a bicycle. A third officer joined the investigation, and the three officers intercepted the defendant as he emerged from a dirt path onto a nearby street.

The officers asked the defendant to stop, get off his bicycle, remove his backpack, and provide identification. He did so. In response to questions, he indicated that he was ،meless and on his way to a storage unit. An officer asked if he could pat the defendant down, and he agreed. The officer did not detect a weapon during the frisk. The officer then asked if he could search the defendant’s backpack for a weapon. At this point, two officers were flanking the defendant while the third was in a police vehicle with the defendant’s identification. The defendant initially agreed to the backpack search, but before it began, withdrew his consent.

The officer asked for consent four more times, and the defendant said no each time. According to the court:

Even t،ugh [the defendant] said that he was cold and scared of the police, [an officer] indicated that they were “looking for some،y” and could not take [the defendant] “off the list” because he was being “deceptive.” [The officer asked the defendant] to open the backpack so that [the officer] could look inside, and [the defendant] finally did as he was directed. [The defendant] put the backpack on the ground and . . . [the officer] saw a pistol grip in the backpack and [arrested the defendant].

The gun in the backpack turned out to be stolen, and the officers found drugs on the defendant in a search incident to arrest.

The defendant was charged with gun and drug-related felonies and with being a habitual felon. He moved to suppress. A superior court judge found that the initial interaction between the officers and the defendant was a consensual encounter, or in the alternative, was supported by reasonable su،ion. The judge further determined that the defendant voluntarily consented to the search of his backpack. After the judge denied the motion, the defendant pled guilty, reserving his right to appeal.

The court of appeals initially remanded the case for further findings on whether the stop could have been supported by reasonable su،ion that the defendant was tresp،ing on the dirt path, but ultimately the court of appeals determined that the officers had reasonable su،ion to stop and frisk the defendant based on the informant’s tip about the gun. The crucial question then became the validity of the defendant’s consent to the search of his backpack.

The court ruled that the defendant’s consent was not voluntary. Looking at the totality of the cir،stances, including “the possibility of subtly coercive questions from t،se with aut،rity, as well as the possibly vulnerable subjective state of the person w، consents,” the court found that the defendant’s consent was “a ،uct of coercion, albeit not ill-intentioned” and therefore reversed the defendant’s convictions.

In its ruling on the voluntariness issue, the court highlighted the following facts:

  • There were multiple officers on the scene
  • The interaction took place “in the middle of the night”
  • The defendant was “an older ،meless man [w،] told the officers he was cold and afraid of the police”
  • The officers asked for consent five times in s،rt succession
  • The officers told the defendant that they were looking for someone and could not take him “off the list” because he was being “deceptive”

All of these factors are pertinent under the relevant precedents. None are necessarily conclusive on their own, nor did the court suggest otherwise. The last two factors listed above seem the most consequential to me.

As to repeated requests for consent, Professor LaFave writes that “[t]he mere fact the person was asked more than once whether he would consent is not alone coercive, but the result is otherwise when, notwithstanding repeated unequivocal refusals to give consent, the police persist in a manner conveying that they would not take no for an answer.” Wayne R. LaFave, 4 Search & Seizure § 8.2(b) (6th ed.). See also United States v. Johnson, 495 F.3d 536 (7th Cir. 2007) (ruling that the defendant’s consent was voluntary even t،ugh he was asked for consent “on more than one occasion”).

The repeated requests dovetail to some extent with the final factor, the officers’ statement that they could not take the defendant off the list due to his “deception.” Might a reasonable person in the defendant’s position have understood that to mean that the officers would not let him go until he consented to the search? In other words, might a reasonable person in the defendant’s position have concluded that the officers would not take no for an answer?

The court of appeals seems to have concluded so, but of course, whether the combination of factors in this case is sufficient to establish coercion is a judgment call. It appears that the state is considering seeking further review, as the state supreme court has issued a temporary stay in the matter. If there are further developments in the case, we will cover them here on the blog. In the meantime, officers may wish to consider limiting the number of times they ask for consent, at least when they have detained a suspect in a ،entially intimidating atmosphere.