Sweeping Hand Gesture Counts as Consent to Search

State v. Daino, No. 120,824, (Kan. Ct. App. Jan. 10, 2020).

Issue: Does opening a door to a residence and simultaneously making a non-verbal sweeping gesture in response after an officer’s request to enter count as consenting to the officer’s entry to search the residence?

Answer: Yes. Under the totality of the circumstances, the State proved by a preponderance of evidence that this non-verbal consent was unequivocal, specific, and freely and intelligently made under the circumstances.

Facts: Police determined that marijuana odor was coming from Gianni Massimo Daino’s apartment.  At Daino’s door, an officer told Daino that he had to step inside to write him a citation.  Daino opened the door wider and gestured by swinging his hand across his body. Upon entering, the officer discovered marijuana, drug paraphernalia, and narcotics.  Daino was arrested, charged, and convicted of intent to distribute marijuana, possession of amphetamines, and possession of drug paraphernalia. Daino motioned to suppress the evidence under an argument that the search violated his constitutional rights.

Discussion: The standard for valid consent is objective, requiring the State to prove, by a preponderance of the evidence, that consent was unequivocal, specific, and freely and intelligently given.  Consent is measured by what a reasonable officer would have objectively understood.  While “mere acquiescence” to a search is not voluntary consent, consent may also be valid when it is nonverbal or implied.  A nod in response to a request to search, or a wave paired with opening a door, has been sufficient to establish consent under Kansas law.  Daino’s non-verbal gesture could reasonably be understood as expressing consent to enter a residence.

Key Authorities:

Kan. Stat. Ann. § 65-4105(d)(17) (2018).

Kan. Stat. Ann. § 65-4107(d)(1) (2011).

Kan. Stat. Ann. § 21-5709(b)(1) (2017).

U.S. Const. amend. IV.

State v. Cleverly, 385 P.3d 512 (Kan. 2016).

State v. Jones, 106 P.3d 1 (Kan. 2005).

State v. Poulton, 152 P.3d 678 (Kan. 2007)