                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0478n.06

                                         No. 16-3159

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
UNITED STATES OF AMERICA,                               )                    Aug 16, 2017
                                                        )                DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                              )
                                                        )
                                                              ON APPEAL FROM THE
v.                                                      )
                                                              UNITED STATES DISTRICT
                                                        )
                                                              COURT FOR THE
TREMAINE D. COWAN,                                      )
                                                              NORTHERN DISTRICT OF
                                                        )
                                                              OHIO
       Defendant-Appellant.                             )
                                                        )
                                                        )



BEFORE:       BOGGS, SILER, and MOORE, Circuit Judges.

       BOGGS, Circuit Judge. Perhaps the last thing one usually expects when exiting the

bathroom is to find a police officer on the other side of the door. However, such was the

situation Tremaine Cowan discovered when he exited the restroom of a private home in February

2015. The question of this case is whether, upon being asked by that officer if he would consent

to a pat-down for the officer’s safety, any agreement would be mere acquiescence rather than

true consent. The district court held that Cowan had consented to the officer’s request. Because

Cowan had the opportunity to decline what the evidence describes as a cordial question and

made no indication that he consented under protest or pressure, we affirm the district court’s

holding and its denial of Cowan’s motion to suppress.
No. 16-3159, United States v. Cowan


                                                I

       The police department of Wellsville, Ohio, serves the village’s 3,500 residents with fewer

than ten full-time officers and three part-time officers. On the night of February 22, 2015, the

department received a phone call from Miranda Devore. She had been on the phone with her

niece and had heard her niece’s boyfriend, Gerard Bryant, in the background yelling before the

call was suddenly ended. Given a history of domestic violence by Bryant against her niece,

Devore asked the police to check on her at an address on Maple Avenue.

       Patrolmen Steve Rodgers and Joseph Rayl were the only officers on duty and reported to

the address, the home of Anita Kavanaugh and Bradley McKenzie. The home was known in the

village as being connected with drug activity, and both patrolmen were familiar with the

occupants. They were also aware that there was an arrest warrant out for Bryant, whom Rodgers

knew from previous interactions. Upon arrival, Rayl went to the front door of the home and

Rodgers went to the back door, in case Bryant fled in that direction. Rayl spoke to Kavanaugh,

who said that Devore’s niece had just left, and Rayl asked if the officers could search the house

for Bryant. Kavanaugh agreed, and Rayl informed Rodgers of her consent before heading

upstairs to look for Bryant.

       Rodgers entered through the back door and looked around the kitchen for signs of Bryant.

Seeing none, he went toward the stairs, where he saw McKenzie attempting to force open a door

using a butter knife and speaking with someone inside the locked room.           Rodgers asked

McKenzie who was behind the door, but McKenzie did not respond, instead continuing his

efforts to open the door. The door came open, and Tremaine Cowan emerged from what was

revealed to be a bathroom. Cowan and Rodgers were about two feet apart in the space between

the stairs and the bathroom. Rodgers did not recognize Cowan and testified at the suppression



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No. 16-3159, United States v. Cowan


hearing that he asked for his name, and Cowan gave it as Deon Johnson—in fact his brother’s

name. Rodgers further testified that he “asked [Cowan] if he could move to the side so that I

could pat him down for officer safety.” Cowan moved to the wall and put his hands against it so

that Rodgers could pat him down. Again according to Rodgers, the conversation up to this point

had been “cordial.” But as Rodgers patted down Cowan, he felt what he believed to be a large

wad of money and then a gun in Cowan’s front pocket. Shouting “Gun,” Rodgers pushed Cowan

against the wall until Rayl could rush downstairs and disarm him. After Rayl took the loaded

gun from Cowan’s pocket, Cowan was handcuffed and brought to the police cruiser.

       At the cruiser, Rodgers patted down Cowan again and took out his Ohio state

identification card from his pocket. The ID revealed Cowan’s true name along with his picture.

Rodgers also seized a scale with cocaine, a cell phone, and $773 in cash. Rodgers called the

Columbiana County Sheriff’s Department and learned of an active warrant for Cowan’s arrest

and that he was a convicted felon. After Cowan was brought to the police station, he informed

the police that he had another gun with him, which was then removed from his waistband and

found to be loaded. He also revealed that he was carrying cocaine in his pants. The police then

found two bags of crack cocaine on Cowan.

       Cowan was charged in federal court with possessing a cocaine mixture of less than

28 grams with intent to distribute and with possession of two firearms after felony convictions.

Following his indictment, Cowan moved to suppress “any and all evidence obtained in violation

of the Fourth Amendment, including but not limited to firearms and other contraband.” After an

oral hearing at which Rodgers testified, the district court denied the motion to suppress, finding

that Rodgers’s testimony that he requested permission to pat down Cowan was credible and that

Cowan had consented to the initial pat-down. After a premature appeal to this court, Cowan



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No. 16-3159, United States v. Cowan


proceeded to a jury trial, where he was found not guilty on the indictment count regarding

cocaine and was convicted on the second count for “being a felon in possession of a firearm or

ammunition, in violation of 18 U.S.C. § 922(g)(1).”         Following another premature appeal,

Cowan was sentenced to 78 months in prison and now appeals the denial of the motion to

suppress on the ground that he did not consent to the search.

                                                 II

                                      A. Standard of Review

       We review a district court’s suppression motion under a mixed standard, assessing the

district court’s findings of fact for clear error and its legal conclusions de novo. United States v.

Akridge, 346 F.3d 618, 622 (6th Cir. 2003). When the district court has denied the motion to

suppress, we review the evidence in the light most favorable to the government. Ibid. Moreover,

if a defendant has not renewed his motion to suppress following trial testimony, we are precluded

from considering that evidence in our review of the district court’s denial, as the district court

never had the initial opportunity to rule on it. United States v. McRae, 156 F.3d 708, 711 (6th

Cir. 1998); see also United States v. Cooper, 39 F. App’x 185, 192 (6th Cir. 2002). Finally, the

question of consent is reviewed for clear error. See United States v. Lee, 793 F.3d 680, 684 (6th

Cir. 2015).

                          B. Whether Cowan Consented or Acquiesced

       With regard to the first pat-down, the stakes are high. The government has conceded

that, absent consent, there was no reasonable suspicion to search Cowan. And despite the broad

nature of the motion to suppress, Cowan has limited his arguments to attacking the alleged

consent to the initial pat-down.




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No. 16-3159, United States v. Cowan


         To provide some brief background, we observe that an officer may pat down “an armed

and dangerous individual . . . [where] a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. 1,

27 (1968).      Of course, “a search authorized by consent is wholly valid,” Schneckloth v.

Bustamonte, 412 U.S. 218, 222 (1973), but a prosecutor bears “the burden of proving that the

consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543,

548 (1968). Such burden “cannot be discharged by showing no more than acquiescence to a

claim of lawful authority.” Id. at 548–49. In Bumper, the police arrived at the petitioner’s

grandmother’s home claiming to have a warrant to search the house. Id. at 546–47. The

grandmother responded with, “Go ahead,” and the officers found a rifle. Id. at 546. When the

trial court held a hearing on the motion to suppress, the prosecutor disclaimed reliance on the

alleged warrant, but stated instead that the grandmother had consented to the search. Ibid. The

Court found that the woman had merely acquiesced to the officers “colorably lawful coercion,”

rather than provided consent. Id. at 550.

         Given our limited view of the evidence in light of Cowan’s failure to renew his motion to

suppress, we will examine only those facts presented before the district court at the suppression

hearing.1 According to Rodgers, he and Cowan were engaged in “cordial” conversation. While

Rodgers was in uniform, he repeatedly testified that he had merely asked Cowan if he would put

his hands on the wall for a pat-down. This testimony was expressly found by the district court to

be credible. “In reviewing the denial of a motion to suppress, ‘we accord considerable deference

  1
    Cowan alleges in his briefing that his situation was particularly intimidating, given that he was the only black
man in the house with two white officers, and cites articles asserting a nationwide history of disproportionate police
violence against black victims. Appellant’s Br. 16. While he did make some reference to this argument in his
testimony at trial, we are limited to the testimony raised before Cowan’s motion was ruled upon and Cowan waived
the argument by not raising it earlier. See Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996)
(“Issues that are not squarely presented to the trial court are considered waived and may not be raised on appeal.”).
Thus, although the issue now raised may well be a serious one, it was unpreserved.

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No. 16-3159, United States v. Cowan


to the credibility findings of the trial court.’” United States v. McCauley, 548 F.3d 440, 447 (6th

Cir. 2008) (quoting United States v. Cooke, 915 F.2d 250, 252 (6th Cir. 1990)).

       The distinction between a question and command can be slippery. This court has found

language that might be characterized as commands to be requests in the past. See, e.g., United

States v. Campbell, 486 F.3d 949, 956 (6th Cir. 2007) (holding that an officer’s statement, “I’d

like to see some ID,” was a request); United States v. Matthews, 278 F.3d 560, 562 (6th Cir.

2002) (finding that an officer’s yell to a defendant, “Hey, buddy, come here,” was a “simple

request[,] . . . which the defendant could have politely declined”), abrogated on other grounds by

Begay v. United States, 553 U.S. 137 (2008). “[L]anguage or tone of voice indicating that

compliance” is necessary can be indicative of a seizure. United States v. Mendenhall, 446 U.S.

544, 554 (1980). But here there was no testimony showing that the language used was coercive,

merely Rodgers’s assertion that “I asked him if he could move to the side so that I could pat him

down” in a cordial manner. Because there is insufficient evidence to demonstrate that the district

court clearly erred in finding these facts, we must accept them.

       Moreover, the district court reviewed all of the evidence discussed in the dissent. The

dissent highlights the four different ways that Rodgers described the encounter. The district

court specifically noted each of the times that the officer consistently stated that he “asked” the

defendant to be patted down. The court recognized that the officer’s police report could be

interpreted to the contrary, but found that the choice of language there did not “mean[] that

consent was not given.” Finally, the court specifically found that the officer was credible and

concluded “that consent was given by the defendant for the search.”

       Of course a request by an officer does not mean that every affirmative response by a

defendant is voluntary consent; on the contrary, if a reasonable person would have felt that he



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No. 16-3159, United States v. Cowan


were not free to walk away and ignore an officer’s request, he is already seized. See United

States v. Richardson, 385 F.3d 625, 630 (6th Cir. 2004).        The facts of this case do not

demonstrate, however, that Cowan was unable to decline the officer’s request. True, Cowan had

just emerged from the uncomfortable experience of being locked inside a bathroom to find a

police officer standing two feet away. But proximity, while admittedly a factor, “is not the only

one.” Florida v. Bostick, 501 U.S. 429, 437 (1991). In Bostick, the Supreme Court found that an

encounter between police officers in a bus aisle and seated passengers was not per se a seizure.

501 U.S. at 437. Rodgers, having obtained Kavanaugh’s consent to enter, had as much right to

be in her home as Cowan did. Much like the situation in Immigration & Naturalization Service

v. Delgado, 466 U.S. 210 (1984), where INS agents had received permission from an employer

to conduct a survey of employees at their workplace in search of illegal aliens, the only

constraints on Cowan were a function of the fact that both he and law enforcement officers were

authorized to be in the same space. Nothing from the record indicates that at that moment

Cowan was compelled to comply and could not decline and either seek to be on his way or

remain in Kavanaugh’s home.

       Finally, the Supreme Court’s decision in United States v. Drayton, 536 U.S. 194 (2002),

confirms our understanding of the situation here. There, much like Bostick, officers boarded a

bus in Florida and began asking passengers if they could search their bags. The officers noticed

two men wearing baggy clothing and asked one if he minded being searched. Id. at 198–99. The

man consented, and officers patted him down, detected drug packages strapped to the man’s

thighs, and took him off the bus in handcuffs. Id. at 199. When they asked Drayton (in the

adjacent seat) if they could pat him down (“Mind if I check you?”), Drayton “responded by

lifting his hands.” Ibid. When an officer patted down Drayton, he discovered Drayton had taped



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No. 16-3159, United States v. Cowan


bundles of cocaine to his thighs. Ibid. Drayton argued that he had been seized, but the Supreme

Court held otherwise:

       The officers gave the passengers no reason to believe that they were required to
       answer the officers’ questions. When Officer Lang approached respondents, he
       did not brandish a weapon or make any intimidating movements. He left the aisle
       free so that respondents could exit. He spoke to passengers one by one and in a
       polite, quiet voice. Nothing he said would suggest to a reasonable person that he
       or she was barred from leaving the bus or otherwise terminating the encounter.

Id. at 203–04. In those circumstances, even with his cotraveler led away before him, the

Supreme Court found that Drayton had “no indication that he was required to consent to a

search.” Id. at 206. In this case, Rodgers did not brandish his weapon or make intimidating

movements. Although he was in front of Cowan when he stepped out of the bathroom, there is

no evidence that Rodgers blocked Cowan’s path down the hallway. And Rodgers spoke to

Cowan in a cordial manner. Therefore, the evidence does not suggest that Cowan was seized

when he encountered Rodgers in Kavanaugh’s home.

       Cowan highlights Rodgers’s statement that Cowan “was going to get patted down for

officer safety” regardless.   Fourth Amendment questions are examined objectively and an

officer’s subjective motivations are not enough to transform a permissible search into an

impermissible one. See Whren v. United States, 517 U.S. 806, 813 (1996). We need not

evaluate the hypothetical situation of what Rodgers might have done had Cowan not consented

except insofar as it might inform our perception of what he actually did, and only then if those

actions would be objectively unreasonable. But there is no evidence that Rodgers’s conviction

that Cowan would be searched in any event had any effect on his actions and thus it merits no

further consideration.

       Moving to the wall, even silently, demonstrates consent, and there was no indication that

Cowan was acquiescing rather than consenting to Rodgers’s request. While this court has found


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No. 16-3159, United States v. Cowan


in situations where a defendant has acquiesced no true consent was given, see, e.g., United States

v. Worley, 193 F.3d 380, 383 (6th Cir. 1999) (finding acquiescence rather than consent where a

defendant responded to an officer’s request to look in his bag with “[Y]ou’ve got the badge, I

guess you can” (alteration in original)), it has also found that assuming the pat-down position can

be evidence of consent. United States v. Chambers, 646 F. App’x 445, 448 (2016); see also

Drayton, 536 U.S. at 199 (silently lifting hands was considered consent to a pat-down); United

States v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990) (per curiam) (raising one’s arms at a request

to pat down demonstrated nonverbal consent), cited in United States v. Anderson, 983 F.2d 1069,

1993 WL 2302, at *7 (6th Cir. 1993) (unpublished table decision). We have also found that

consent can be given without speaking a word. See United States v. Ortiz, 455 F. App’x 669,

671–72 (6th Cir. 2012) (holding that “stepping back, gesturing, and opening the door

wider . . . unambiguously conveyed” assent to officers’ request to enter). Because “the question

of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on

very similar facts.” Drayton, 536 U.S. at 206. Rodgers asked Cowan if he could pat him down

and provided a reason (officer safety) why he sought to do so—something he need not have done

if he were simply demanding compliance. Where a citizen “advise[s] the police of his or her

wishes and . . . [the police] act in reliance on that understanding[,] . . . it dispels inferences of

coercion.” Id. at 207. Again, although the burden is the government’s to demonstrate that

“consent was voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress

or coercion,” the totality of the circumstances, given the available evidence, shows that Cowan

responded to the officer’s request without displaying concern or hesitance. Chambers, 646 F.

App’x at 447 (quoting United States v. Lucas, 640 F.3d 168, 174 (6th Cir. 2011)).




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No. 16-3159, United States v. Cowan


       It is certainly possible that another judge looking at the same evidence and testimony

could come to a different conclusion regarding whether Rodgers had properly asked Cowan for

his consent. But given our standard of review as outlined above, we must “consider[] the

evidence ‘in the light most likely to support the district court’s decision.’” United States v.

Smith, 263 F.3d 571, 581 (6th Cir. 2001) (citation omitted). And when we do so, there is no

basis to reverse the district court’s denial of the motion to suppress.

                                                 III

       Because the only evidence before us is the testimony presented at the suppression hearing

by Rodgers—testimony the district court found credible—and Rodgers stated that Cowan

consented to his request to move to the wall without objection or indication of protest, we hold

that the facts above indicate that Cowan’s consent to the pat-down was voluntary and AFFIRM

the district court’s denial of the motion to suppress.




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No. 16-3159, United States v. Cowan


          KAREN NELSON MOORE, Circuit Judge, dissenting. When Tremaine Cowan was

finally freed by his friend from a locked bathroom in the friend’s home, he found himself about

two feet from, and face-to-face with, a uniformed, visibly armed police officer. After the officer

“asked [Cowan] if he could move to the side so that [the officer] could pat him down for officer

safety,” Cowan said nothing and remained absolutely silent. The record does not indicate that

Cowan ever nodded to the officer or made any hand gestures. Cowan instead moved to the side,

raised his arms, and placed them against the wall. Cowan was immediately searched, and only

then did the officer uncover the firearm that is the subject of Cowan’s conviction. The majority

concludes that the search of Cowan was lawful “[b]ecause Cowan had the opportunity to decline

what the evidence describes as a cordial question and made no indication that he consented under

protest or pressure.” Maj. Op. at 1. I disagree. I do not believe that a reasonable person in

Cowan’s shoes would have felt free to terminate the encounter with the officer, and the

majority’s insistence that Cowan was required to indicate that he was consenting under pressure

conflicts with the law. Therefore, I cannot conclude on the basis of this record that any consent

by Cowan was unequivocally, specifically, and intelligently given.


                                                  A.


          The majority rightly notes that “[w]e review a district court’s suppression motion under a

mixed standard, assessing the district court’s findings of fact for clear error and its legal

conclusions de novo.” Maj. Op. at 4 (citing United States v. Akridge, 346 F.3d 618, 622 (6th Cir.

2003)). Because I find no clear error in the district court’s factual or credibility determinations,

my discussion is limited to only the district court’s legal conclusion that Cowan consented to the

search.



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No. 16-3159, United States v. Cowan


       A police officer does not violate the Fourth Amendment when the officer conducts a

search pursuant to free and voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973); United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011). “The government bears the

burden of proving, through ‘clear and positive testimony’ that the consent to search was given

voluntarily.” Beauchamp, 659 F.3d at 571 (quoting United States v. Salvo, 133 F.3d 943, 953

(6th Cir. 1998)). We have held that “[c]onsent is voluntary when it is ‘unequivocal, specific and

intelligently given, uncontaminated by any duress or coercion.’” Id. (quoting United States v.

Moon, 513 F.3d 527, 537 (6th Cir. 2008)). A court considering whether a defendant gave

unequivocal, specific, and intelligent consent to a search must consider the totality of the

circumstances. Id. at 571–72 (citing Bustamonte, 412 U.S. at 227). Although we have never

held that a police officer is required to inform an individual of his right to refuse consent, “the

absence of such a warning is considered in the totality of the circumstances analysis.” Id. at 572.

We have certainly never held, as the majority states today, that an individual is required to

articulate to an officer that his consent is under protest or pressure.


                                                  B.


       What exactly Officer Rodgers said to Cowan before conducting the pat-down is still not

clear. Officer Rodgers presented the district court with four different versions of his statement to

Cowan. In his first police report, Rodgers wrote, “Officer Rodgers had [Cowan] place his hands

on the wall so he could be patted down for officer safety.” R. 29 (Mot. Hr’g Tr. at 6) (Page ID

#217) (emphasis added). During a preliminary hearing approximately one week later, Rodgers

said, “I asked him to move over and I asked him if I could pat him down for my safety.” Id.

(emphasis added). Before the grand jury, Rodgers said “I asked him if he would move over to

the side of the dining room area so I could pat him down for weapons for our safety.” Id.

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No. 16-3159, United States v. Cowan


(emphasis added). Finally, in his second police report, Rodgers states, “I, Patrolman Rodgers,

then asked [Cowan] to place his hands on the wall so I could pat him down for officer safety.”

Id. at Page ID #217–18 (emphasis added). I believe that only one of Rodgers’s four alleged

statements, that he “asked him if I could pat him down” constitutes a request. The other three

statements are commands because each communicates to Cowan that he will be patted down and

that he must step to the side and place his hands on the wall. The district court ultimately

concluded that Rodgers “asked the defendant to move over to the side and put his hands on the

wall for a pat-down for officer safety.” R. 29 (Mot. Hr’g Tr. at 5) (Page ID #216). I conclude

that based on the district court’s factual finding, Rodgers’s “ask” was only that Cowan move to

the side, and not whether Cowan would consent to a pat-down of his person.


       The majority cites United States v. Campbell, 486 F.3d, 949, 956 (6th Cir. 2007), and

United States v. Matthews, 278 F.3d 560, 562 (6th Cir. 2002), abrogated on other grounds by

Begay v. United States, 553 U.S. 137 (2008), for the proposition that “[t]his court has found

language that might be characterized as commands to be requests [that an individual is free to

decline] in the past.” Maj. Op. at 5. In Campbell, we held that an officer’s statement that “I’d

like to see some ID” to a person standing outside in a public parking lot was merely a request

and that a “reasonable person would feel free to decline . . .” Campbell, 486 F.3d at 956.

Similarly in Matthews, we held that a reasonable person walking down a street would feel free to

ignore a police officer yelling “[h]ey, buddy, come here” through the officer’s police-cruiser

window. Matthews, 278 F.3d at 562. The majority therefore reasons that Officer Rodgers

saying to Cowan, “I asked him if he could move to the side so that I could pat him down” was

similarly a request. I disagree, and believe that the majority gives short shrift to the totality of

the circumstances that distinguish this case from both Matthews and Campbell:              (1) both


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No. 16-3159, United States v. Cowan


Matthews and Campbell involve interactions between individuals and police officers in public

places of the defendant’s choosing; (2) in Matthews, the officer yelled at the defendant while the

defendant walked down a public street and while the officer was still inside of the officer’s

police cruiser; (3) the officer in Campbell spoke to the defendant in a public outdoor parking lot;

and (4) the officer in Campbell requested the defendant’s identification only after the officer and

the defendant had engaged in a detailed and cordial conversation. See Matthews, 278 F.3d at

561; Campbell, 486 F.3d at 952. Here, Cowan encountered Officer Rodgers only after he was

freed by his friend from a locked bathroom and found himself confined to a small space between

the officer, the bathroom door, and the stairs. Unlike the defendants in Matthews and Campbell,

who encountered police officers in public settings, Cowan was inside of a private residence, a

mere two feet from the officer. Further, Officer Rodgers’s statement that he wanted to pat

Cowan down came immediately after asking Cowan his name, and not after a prolonged

conversation. The circumstances of this case readily distinguish it from Matthews and Campbell.

While I would not disturb the district court’s factual finding that the interaction between Officer

Rodgers and Cowan was cordial1, I would find that the Officer’s statement that he wanted to pat

Cowan down coupled with both the circumstances surrounding Cowan’s appearance from the

bathroom and the close proximity of Officer Rodgers to Cowan compel a finding that a

reasonable person would not have felt that he could freely walk away and decline the officer’s

request.


         The majority also relies on United States v. Drayton, 536 U.S. 194, 199 (2002), because

the Supreme Court in Drayton held that an individual who responded to the question “Mind if I

check you?” by lifting his hands consented to a search. Maj. Op. at 7. That is not the situation in

  1
   Importantly, the district court noted that Officer Rodgers “did raise his voice” during the interaction. R. 29 (Mot.
Hr’g Tr. at 5) (Page ID #216).

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No. 16-3159, United States v. Cowan


this case. The district court did not conclude that Rodgers asked Cowan if he could conduct a

search, but rather “he asked him to move and then gave an explanation as to why he was making

this request.” R. 29 (Mot. Hr’g Tr. at 5) (Page ID #216). This is not a semantic difference. The

difference between asking in the first instance whether an individual consents to a search and

asking whether an individual can take an action that will facilitate a search is the difference

between a request that can be freely declined and a command that cannot.


                                               C.


       Finally, I disagree with the majority that Cowan’s decision to place his hands on the wall

constituted some sort of silent and unequivocal consent. Citing our recent decision in United

States v. Chambers, 646 F. App’x 445, 448 (6th Cir. 2016), the majority concludes that

“assuming the pat-down position can be evidence of consent.” Maj. Op. at 8–9. What the

majority fails to recognize is that the defendant in Chambers gave clear verbal consent to the

search in addition to placing his arms on the police vehicle for a pat-down. Before ever being

patted down or assuming the pat-down position, Chambers responded to an officer’s question

whether he “would mind if [the officer] patted him down for weapons and/or drugs” by saying

“[g]o ahead.” Chambers, 646 F. App’x at 445–46. Only after giving verbal consent did

Chambers walk to the officer’s police cruiser and assume the pat-down position. While we

concluded that Chambers placing his arms on the police vehicle “could be viewed as further

evidence of consent,” our conclusion that Chambers expressly consented to the search was based

solely on his verbal response of “[g]o ahead.” Chambers, 646 F. App’x at 448. The only other

case the majority relies on for its proposition that consent may be unequivocally, specifically,

and intelligently given through silence is Drayton, 536 U.S. at 199. But because the defendant in

Drayton was directly asked if he consented to the search, that case is distinguishable. I further

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No. 16-3159, United States v. Cowan


conclude that the majority’s reliance on United States v. Ortiz, 455 F. App’x 669, 671–72 (6th

Cir. 2012), for the proposition that “[w]e have also found that consent can be given without

speaking a word,” is misplaced. Maj. Op. at 9. We found consent in Ortiz only because upon

answering the door, the defendant “responded by stepping back, gesturing, and opening the door

wider.” Ortiz, 455 F. App’x at 671. The defendant in Ortiz acted affirmatively by gesturing to

the officers and widening the door entryway. Cowan took no such affirmative steps. Cowan did

not gesture, nod, clear a path, or otherwise affirmatively consent to the Officer’s search. Instead,

Cowan simply placed his hands on the wall.


       I cannot accept the majority’s characterization of Cowan’s encounter with Officer

Rodgers as being one in which a reasonable person would have felt free to leave. I believe that

the circumstances suggest otherwise. I likewise cannot conclude on this record that Cowan’s

decision to place his hands on the wall in response to Rodgers’s words constituted silent and

unequivocal consent. I would therefore suppress the seizure of the firearm and thus REVERSE

the judgment of the district court.




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