United States v. Tremaine Cowan
704 F. App'x 519
6th Cir.2017Background
- Officers responded to a domestic-violence welfare check at a private home; occupant Kavanaugh consented to officers searching for a suspect.
- Patrolman Rodgers approached the back of the house, found McKenzie forcing open a locked bathroom door; Cowan emerged about two feet from Rodgers.
- Rodgers (in uniform) asked Cowan his name; Cowan gave a false name. Rodgers then "asked [Cowan] if he could move to the side so that I could pat him down for officer safety."
- Cowan moved to the wall, placed his hands against it, and Rodgers conducted a pat-down, discovering a gun; additional contraband and an active warrant were later uncovered.
- Cowan moved to suppress evidence as Fourth Amendment violations; district court credited Rodgers’s testimony that Cowan consented and denied suppression. The Sixth Circuit majority affirmed; a dissent would have suppressed.
Issues
| Issue | Plaintiff's Argument (Cowan) | Defendant's Argument (Gov't/Rodgers) | Held |
|---|---|---|---|
| Whether Cowan voluntarily consented to the initial pat-down | Silence and proximity to a uniformed, armed officer in a small space meant a reasonable person would not feel free to refuse; placing hands on wall was acquiescence, not consent | Rodgers asked politely for a pat-down for officer safety; Cowan had opportunity to refuse and his moving and positioning were nonverbal consent | Consent was voluntary; district court credibility finding stands; denial of suppression affirmed |
| Whether the interaction amounted to a seizure under Terry v. Ohio | Cowan: circumstances (locked bathroom, two feet from officer, officers armed) made the encounter coercive and thus a seizure | Gov't: officer had lawful presence in the home, spoke cordially, did not brandish weapon or block egress; objective reasonableness controls | No seizure found; objective facts showed Cowan could have declined; Terry stop not required because consent existed |
| Whether acquiescence to asserted authority (Bumper) vitiates consent | Cowan: apparent coercion or implied compulsion can render "consent" mere acquiescence | Gov't: no claim of a warrant or assertion of authority; officer asked and Cowan manifested consent | Bumper not controlling — no colorable claim of lawful compulsion; government met burden to show voluntary consent |
| Standard and scope of review on appeal | Cowan: appellate review should overturn where reasonable person wouldn't feel free to decline | Gov't: deferential review to district court factual findings; review legal conclusions de novo | Sixth Circuit applies clear-error to facts, views evidence favorably to gov't; affirmed denial of suppression |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (officer may conduct limited pat-down based on reasonable belief of danger)
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent searches valid but prosecution must prove consent was voluntary)
- Bumper v. North Carolina, 391 U.S. 543 (1968) (consent cannot be mere acquiescence to assertion of lawful authority)
- United States v. Drayton, 536 U.S. 194 (2002) (consent to searches may be shown by polite requests and nonverbal assent; passengers need not be told they may refuse)
- Florida v. Bostick, 501 U.S. 429 (1991) (presence and proximity alone do not make an encounter a seizure)
- INS v. Delgado, 466 U.S. 210 (1984) (lawful presence in private space with consent to enter can affect seizure analysis)
- Whren v. United States, 517 U.S. 806 (1996) (objective standard governs Fourth Amendment reasonableness, not officer's subjective intent)
- United States v. Mendenhall, 446 U.S. 544 (1980) (language or tone indicating compliance is required may indicate seizure)
- United States v. Akridge, 346 F.3d 618 (6th Cir. 2003) (mixed standard of review for suppression rulings)
- United States v. McCauley, 548 F.3d 440 (6th Cir. 2008) (deference to district court credibility findings in suppression review)