Consent to Search Can be Given by Gestures, Kansas Supreme Court Clarifies

Author: Andrew Tague, Staff Editor

State v. Daino, No. 120,824, (Kan. Nov. 13, 2020)

Issue: The Fourth Amendment of the U.S. Constitution and section 15 of the Kansas Constitution Bill of Rights permit warrantless searches of an individual’s residence if the individual consents to the search.  To be valid, the consent must be unequivocal, specific, and freely and intelligently given.  May an individual consent to a warrantless search through nonverbal conduct?

Answer: Yes.  Consent may be given by nonverbal conduct so long as the individual’s acts or conduct convey valid consent under the totality of the circumstances.  

Facts: Police officers knocked on the door of an apartment suspected of housing marijuana.  After the defendant, Gianni Daino, answered the door, the officers asked to enter the apartment.  Daino responded by nodding his head, opening the door as far as it could go, and standing out of the way.  In the apartment, the officers found marijuana, amphetamine, and drug paraphernalia.  Daino moved to suppress this evidence on the grounds that the search violated the Fourth Amendment of the U.S. Constitution and section 15 of the Kansas Constitution Bill of Rights.

Discussion: Under the U.S. and Kansas Constitutions, consent to a warrantless search must be unequivocal, specific, and freely and intelligently given.  In granting Diano’s motion to suppress, the district court relied on the Kansas Court of Appeals’ decision in State v. Poulton, which held that an individual’s nonverbal conduct showed “mere acquiescence” or “implied consent” to a search, was “contrary to established law.”

The Kansas Supreme Court reversed the district court’s decision, concluding it misconstrued Poulton as categorically prohibiting nonverbal consent and, as a result, applied the wrong legal standard.  The Court sympathized with the district court’s confusion because Poulton relied on Black’s Law Dictionary’s definition of “implied consent” as including inaction, silence, signs, and actions.  However, the Court explained that Poulton’s use of “implied consent” must be limited to “inaction or silence” given the facts of that case.

After surveying state and federal case law, the Court concluded that “nothing in our precedent requires consent to be verbal.”  Rather, courts have consistently focused on “the message the individual unequivocally conveys” under the totality of the circumstances, which may include words, acts, conduct, and gestures.

Key Authorities: State v. Poulton, 152 P.3d 678 (Kan. Ct. App. 2007), (citing Black’s Law Dictionary’s definition of “implied consent” and holding that it could not be “unequivocal and specific” or “freely and intelligently given”), aff’d in part, rev’d in part, 179 P.3d 1145 (Kan. 2008).