Consent voluntary although obtained by threat

Listen to this article

The Seventh Circuit held on Jan. 6 that, where an officer could have impounded and searched a vehicle, it was not coercive to obtain consent to search it by threatening to do so.

Two police officers in Illinois, Charles Novy and Luis Escobar, were investigating an anonymous 9-1-1 telephone call about a man in a black truck taking pictures of a little girl who was walking on a sidewalk with her father. The caller also told the police dispatcher of another incident in the same area involving an individual taking pictures of girls after school.

Novy spotted a dark green truck driven by Michael E. Davis, and followed it for half a mile, before pulling it over because the license plate was obscured, a violation of state law. As it turned out, Davis also had no proof of insurance, and did not have an Illinois driver’s license, although he had moved to Illinois 6 months earlier, also violations of state law.

Told about the 9-1-1 call, Davis explained that he was taking pictures, but was documenting poor snowplowing by the village that left piles of snow blocking sidewalks (Davis uses a wheelchair).

The officer remained suspicious, because he saw rope, duct tape, and towels covering the upholstery, and asked for consent to search the car. Davis asked what would happen if he refused, the Novy told him that, because he had no valid driver‘s license or proof of insurance, his truck would be impounded and he would be taken to jail.

As a result, Davis consented. Novy searched the cab and found other suspicious items: a ticket stub from a children’s zoo, court documents from South Dakota, and a woman’s thong underwear behind the driver’s seat.

Escobar then asked for consent to search Davis’ home, and Davis signed a “consent to search” form. After finding nothing incriminating, Davis was ticketed for having no valid driver’s license, operating an uninsured vehicle, and displaying an obscured registration sticker. The encounter lasted two hours.

Davis then sued Officers Novy and Escobar in federal court pursuant to 42 U.S.C. 1983, alleging the initial traffic stop lacked probable cause or reasonable suspicion, and claiming that he was coerced into consenting to the search of his truck and home.

The parties agreed that the anonymous 9-1-1 call was an insufficient basis for the stop, but the magistrate judge found that the obscured registration sticker supported the stop. The court also found that Davis consented to the search of his truck and home.

Davis appealed, but the Seventh Circuit affirmed, in a decision by Judge Terence T. Evans.

Davis argued that Novy didn’t see the obscured sticker until after the stop, although he conceded that the sticker was in fact obscured, noting three factors: (1) when Davis asked about the reason for the stop, Novy didn’t mention the obscured sticker, but instead told him about the child-picture-taking complaint; (2) Novy didn’t stop him as soon as he allegedly saw the obscured sticker; and (3) the transcript of the radio communications among Novy, Escobar, and the dispatcher contains no mention of an obscured sticker.

Rejecting the argument, the court reasoned, “It is undisputed that Novy followed Davis’s truck for about a half a mile before signaling him to pull over. We cannot imagine that Novy did not look at the truck’s rear license plate during that time. After all, that’s what police officers do when following a vehicle. Also, the fact that Novy didn’t stop Davis immediately upon seeing the sticker means little — police are not required to make their move at the first sign of an offense, and in this case it was reasonable for Novy to wait and see if any further information was forthcoming from Officer Escobar. Nor is it unexpected that an officer will hold back from telling a motorist all of his reasons for initiating a stop.”

The court also found that Davis was not unlawfully coerced into consenting to the searches.

The court reasoned, “the statute authorized Novy to impound Davis’s truck. And given what Novy was faced with — a report of suspicious photo-taking; a driver with an out-of-state license carrying rope, duct tape, towels, and ladies’ underwear in his truck — it was reasonable for him to use the tools available to him to investigate further. One way would have been to impound the vehicle and perform the search when the truck was in custody. Another way was to obtain Davis’s consent. He gave Davis a reasonable choice, and we can’t conclude that Novy’s offer was coercive.”

	Related Links 7th Circuit Court of Appeals Related Article Case Analysis

The court added, “it is important to note, Davis got exactly what he hoped to get by consenting: He was not arrested and his truck was not impounded. The fact that Novy apparently elected not to enforce the Illinois law to its fullest doesn’t mean Davis’s consent was illegally obtained. It would be different, of course, if the threat of arrest and/or impoundment of the truck was unauthorized by state law. In that case, Novy would have obtained a consent with an empty threat, and the result would be different.”

Accordingly, the court affirmed, concluding with the following dicta: “it could be argued that the information available to Novy might well have justified a brief investigatory stop based on reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968). Given that we live in a time of increasing crimes against children — what with ‘Amber Alerts’ and all — the limited intrusion of a brief traffic stop under circumstances like those present in this case cannot be easily labeled as unlawful.”

Click here for Case Analysis.

David Ziemer can be reached by email.