Thursday, March 26, 2020

Acquiescence to authority is not consent

In United States v. Pedicini, the Sixth Circuit recently emphasized the distinction between acquiescence to authority and consent to search. A highway patrol trooper pulled over Pedicini for driving in the bike lane. After asking Pedicini to get out of the car, the trooper asked if had any weapons and if he could pat him down. Pedicini did not verbally respond, but extended his arms and asked why he was being patted down and if he was in trouble. The trooper explained that he wanted to search for weapons, asked if Pedicini would mind a patdown, asked if he had any sharp objects, then listed several possible sharp objects. Pedicini then nodded his head and the trooper patted him down and found a gun. But, the Sixth Circuit said, it was unclear what Pedicini was nodding to. "What is clear from this exchange is Pedicini’s consistent confusion and reluctance to be searched as indicated by his repeated questions even while acquiescing to the Trooper." The court noted that non-verbal actions can constitute consent, but not if they are merely "acquiescence to a claim of lawful authority." The court found Pedicini's actions did not constitute voluntary consent, and reversed the district court's contrary findings.

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