On defense claim that the defendant did not affirmatively consent but only “acquiesced” to the search, defense counsel’s use of the word “acquiesced” in cross-examining the officer was inadmissible under FRE 701 for attempting to force the officer to adopt a legal conclusion, in United States v. Canipe, 569 F.3d 597 (6th Cir. June 30, 2009) (No. 08-5534)
Under the FRE, counsel can ask leading questions of a hostile witness, but that does not mean that there are not limits to the questions that may be asked. A recent case decided by the Sixth Circuit demonstrates that when the court serves as fact finder it is not tied to the literal words uttered by the witness and where counsel attempts to force the witness to adopt counsel’s legal conclusion, the court can discount this.
In the case, the defendant was arrested after a search of his vehicle discovered a firearm and ammunition. The defendant was charged with being a felon in possession of a firearm. Prior to trial, the defendant filed a suppression motion regarding the evidence found in the search, contending that he did not consent to the search. The magistrate judge hearing the motion declined to suppress the evidence seized from the search. The defendant conditionally pled guilty to the charge, pending appeal.
On appeal, the defendant contended that his “mere expression of approval” or “acquiescence” to the officer’s search request was “not the unequivocal, specific, and intelligent consent required” by the constitution. Canipe, 569 F.3d at 602 (citing United States v. Worley, 193 F.3d 380, 385 (6th Cir .1999) (valid consent to search must be voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress or coercion); see also United States v. Moon, 513 F.3d 527, 538 (6th Cir. 2008) (“mere acquiescence does not suffice to establish free and voluntary consent”)). The circuit rejected this argument that defendant did not validly consent to the search.
The circuit noted that the primary foundation for the defendant’s argument that he did not freely consent was testimony by the arresting officer when he was examined at the suppression hearing. Officer Hagie made “affirmative responses to defense counsel's questions at the evidentiary hearing asking whether Canipe ‘acquiesced.’” Canipe, 569 F.3d at 603. The circuit found this basis for a charge that the search was not consensual “lack[ed] merit.” According to the circuit:
“While defense counsel's use of the word “acquiesced” in his questioning of Investigator Hagie was an attempt to force a fact witness to adopt counsel's legal conclusion, such testimony was both incompetent and unpersuasive. See Fed. R. Evid. 701 (limiting lay witness opinions and inferences to those based upon the witness's perception and helpful to a clear understanding of his testimony or a fact in issue, not based upon technical or other specialized knowledge within the scope of expert testimony).”Canipe, 569 F.3d at 603 (citing Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985) (“The problem with [lay witness] testimony containing a legal conclusion is in conveying the witness' unexpressed, and perhaps erroneous, legal standards.... This invade[s] the province of the court to determine the applicable law ....”) (quotation marks omitted).”
On this record, the circuit was compelled to “agree with the district court's characterization of defense counsel's line of questioning on this issue as ‘a semantic trap.’” Under the applicable standard of review, the circuit was constrained to “view the evidence in the light most likely to support the district court's decision.” Indeed, the facts developed during the suppression hearing clearly supported the trial court’s determination, since it showed that the defendant:
“responded positively and unambiguously that it ‘wouldn't be a problem’ for Hagie to search his truck. When Hagie informed Canipe a second time of his intent to search the vehicle, Canipe made no objection. The district court astutely observed that the ‘[d]efendant has prior criminal convictions, and therefore he is no stranger to the police or the criminal justice system. It defies common sense that he meekly “acquiesced” because he was intimidated by Investigator Hagie.’ We agree and find no clear error in the district court's ruling that Canipe's consent was valid.”Canipe, 569 F.3d at 604.
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