Consent by the Numbers

by | August 24, 2023

United States v. Williams, 2023 WL 5256221 (8th Cir. 2023)

A 911 caller reported a man in a wheelchair in apartment 32 had just shot a gun from a balcony. Cornell Williams, a wheelchair user, lived in apartment 32. Officers arrived and spoke with the caller and other witnesses. One witness told the officers there could be multiple people in apartment 32.

Officers knocked on the door of Williams’ apartment with their guns drawn. After about a minute, Williams answered. When he opened the door, he began rolling his wheelchair backward. The officers entered the apartment to frisk Williams. An officer politely (talk nice, think mean) asked for permission to conduct a quick sweep of the apartment to check for other people. Williams replied, “Yes ma’am. You can do whatever you want.”

Williams told the officers about “sketchy characters that he had seen hanging out near the trash cans” below his balcony. An officer approached the balcony to get a better view and saw an expended shell casing. Seeing the shell casing, the officers asked more questions. Williams initially denied having a gun and had no explanation for the shell casing on the balcony. He told the officers he was a convicted felon and knew he could not possess a gun or ammunition. When the officers mentioned a search warrant, Williams told them he was the shooter and he directed them to where he hid the gun. The officers found the gun and seized it.

Williams asked the trial district court to suppress the gun and shell casing. The trial court declined to grant his motion and Williams conditionally pleaded guilty to possessing a firearm as a felon. The appellate court affirmed his conviction.

“Asking Williams for permission was the right move. Exigent circumstances would not have justified a protective sweep of the kitchen cabinets.”

The court noted, “When Williams finally answered the door, the officers were face-to-face with a man who matched the description of the shooter.” The court held the officers’ entry at that point was justified by the exigent circumstances doctrine. The court listed the officers’ options: “They could have stood at the door and questioned a potentially armed suspect—someone who minutes before had allegedly fired a gun from his balcony. They could have retreated and applied for a warrant, which would have left other occupants of the building and anyone inside Williams’s apartment in potential danger. Or they could do what they did here: enter for the limited purpose of patting him down for a weapon before questioning him.” The court noted there is an important distinction between a suspect who has just illegally used a gun and someone who merely possesses one.

The court held that Williams consented to a protective sweep of the apartment when he told the officer, “Yes ma’am. You can do whatever you want.” It was reasonable for the officers to believe Williams was giving consent to look out on the balcony when he told them there had been suspicious activity outside. Williams gave the officers consent to retrieve the gun after he confessed to “firing the shot” and told officers he hid the gun in a kitchen cabinet. He even told the officers its exact location when they had trouble finding it: “It is hard to imagine a clearer instance of consent through words and actions.” Commending the officers, the court stated: “Asking Williams for permission was the right move. Exigent circumstances would not have justified a protective sweep of the kitchen cabinets. Nobody could hide in there, so there was no risk that someone would jump out and start shooting.”

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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