Consensual encounter leads to valid consent where gun is found on defendant


In 2021, Midland Police Department (MPD) Officer Jeremy Renforth was dispatched to follow up on a suspicious person call at the Candlewood Suites motel. The anonymous call had come to the Midland Police Department Communications Center, relaying a description of the subjects —a black male with a blue shirt as well as another black male with no description —and a location at the motel’s rear parking lot area. According to Renforth, the caller was approached by these people and they had offered to sell him drugs or a gun. Renforth was in the area and quickly arrived on scene.

According to Renforth, upon arriving at the motel area, he noticed a Black male with a blue shirt—later identified as Jordan Ray Smith—look over, see his marked patrol unit and then start to walk away. Given that response, Renforth believed that this was going to be the person he probably needed to talk to. After circling the area to make sure that there was not anybody else that matched those descriptions there, Renforth got out of his car and approached Smith without activating his emergency lights or sirens.

Finding Smith was on the phone with his wife, Renforth requested that he hang up the phone so that they could speak, saying “you could talk to her later.” Smith put the phone down, but did not disconnect the call. When Renforth told Smith that the police received a call regarding someone in the area selling drugs and a firearm, Smith stated unequivocally that he was not doing so. Complying with Renforth’s request, Smith gave Renforth his personal information, including his name, address, and phone number.

Renforth then asked whether Smith had any weapons on his person. Smith said “no, sir.” Renforth also asked if Smith was carrying drugs or anything illegal. Again, Smith said “no, sir.” Renforth sought Smith’s consent to search his “person to make sure.” Smith granted Renforth permission, saying “Yes sir,” but quickly added, “The only thing I do have, because I just picked it up is [my wife’s] pistol, I got her pistol, I just went and got it. Renforth asked if it was on his person. Smith said yes. Renforth said: “Without pointing at it, where is it?” Smith raised his hands, jutted his left hip out, and said it was in his pocket. Smith raised his hands further and offered Renforth the opportunity to retrieve the pistol himself.

Instead, Renforth placed Smith in handcuffs, explaining that it was necessary to retrieving the pistol safely. Once Smith was secured, Renforth confirmed which pocket the firearm was in and then retrieved it from his jeans pocket. Renforth escorted Smith to his cruiser and asked for consent to complete his search, which Smith permitted. Indeed, Renforth then said, “I appreciate you being honest and working with me.” The subsequent portion of the search found a pocketknife, a “meth pipe,” a torch lighter, and a flip phone (not the phone on which Smith was speaking). Following the search, Renforth placed Smith in the back of his vehicle to secure him.

With Smith in the cruiser, Renforth obtained Smith’s driver’s license information from a database search on his mobile laptop and radioed in to request further investigation of Smith’s background. Renforth also requested a check on Smith’s pistol, submitting the make, model, and serial number. While waiting on this information, Renforth called the anonymous tipster, asking to describe again what the gun seller was wearing. The tipster stated that the purported seller was wearing a “blue and black shirt I think.” Renforth asked the tipster to confirm if the seller was Black—the tipster so confirmed—and, then, what the seller’s skin tone was—dark, medium, or light. The tipster stated “Medium.”

The tipster said he was unsure of the seller’s height and other clothing because the seller was sitting down. In the conversation, Renforth noted, “I actually have the guy, I’m just trying to see if you can describe him to me, make sure I got the right guy.” The tipster then estimated the seller’s age to be 35 and described him as skinny with scruffy short hair. Finally, Renforth urged the tipster to disclose his identity, but the tipster refused, fearing police involvement and retaliation.

Smith was convicted of being a felon in possession and sentenced to 37 months. On appeal, he argued his motion to suppress the gun should have been granted. The 5th affirmed.


A. Consensual Encounter

There are three recognized types of encounters between law enforcement officers and citizens, including: 1) a consensual encounter during which an individual voluntarily agrees to communicate with the police; 2) a limited investigatory stop based upon less than probable cause (Terry stop); and 3) an arrest which constitutes a seizure under the Fourth Amendment. See Williams.

As for voluntary or consensual encounters, the Fourth Amendment permits police officers to approach individuals at random to ask questions and to request their consent to searches, provided a reasonable person would understand that he or she is free to refuse.

Consensual encounters may be initiated by the police without any objective level of suspicion, and during such encounters, officers may ask questions of the person, ask for identification, and request permission to search an individual or one’s personal effects. See Williams.

This Court examines the following non-exclusive factors for determining whether a consensual encounter occurred: (1) the threatening presence of several police officers; (2) the display of a weapon by an officer; (3) physical touching of the person of the citizen; and (4) the use of language or tone of voice indicating that compliance with an officer’s request was compelled. See Guevara.

First, there is no evidence that Renforth was a threatening presence. At no point did Renforth block Smith’s path. To the contrary, Renforth permitted Smith to keep his cell phone throughout the interaction, even allowing Smith to continue a call to his wife (Smith stated she was on the line). The brevity of the discussion also evidences a voluntary encounter—that he was not subject to a lengthy interrogation. Moreover, this Court has repeatedly referenced the number of officers engaging in an interaction as relevant in consent analysis, reflecting the obvious fact that more officers can create an air of coercion. See Guevera.

Second, the bodycam footage suggests that at no point did Renforth reach for or brandish a weapon or make any intimidating movements, nor does Smith suggest such actions occurred. Similarly, during the initial encounter, Renforth never placed his hands on Smith.

Third, Renforth never told Smith that he was the individual suspected of criminal activity. This Court has recognized that statements by an officer indicating that an individual is suspected of illegal activity are persuasive evidence that an objectively reasonable person would not feel free to leave. By contrast, disclosing a generalized suspicion about a crime to an individual is insufficient to effect a seizure. See Tyson. Renforth’s statements fall into the latter category, beginning the conversation with Smith with an explanation that “we just got some calls from some people about, I guess, some Black male trying to sell people drugs and guns.” Smith responded: “Nah, not I,” and the two pivoted the conversation to Smith’s presence in the area.

Finally, Renforth’s use of language and tone of voice suggest that the search was consensual. Upon review of the bodycam footage, at no point did Renforth raise his voice or yell at Smith. He was instead calm and spoke to Smith respectfully throughout the encounter (both the initial encounter and the frisk), supporting a finding of no coercion or compulsion.

So, then, Smith’s contention that the initial interaction was not consensual largely rests on two issues: (1) Renforth’s driving “so close” to Smith; and (2) Renforth’s telling Smith “you can talk to [your wife, with whom you are currently on the phone] in a minute.” Neither argument persuades.

In SCOTUS Michigan v. Chesternut, 486 U.S. 567 (1988), a defendant started to run upon noticing a police cruiser, which prompted the driver, an officer, to follow the defendant and drive alongside him for a short distance. A unanimous Supreme Court offered relevant signals of intimidation—here absent—including activating flashers or sirens, brandishing firearms, commanding the defendant to halt, or driving the cruiser in an aggressive manner to block his course or otherwise control the direction or speed of his movement, and while the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure. If the defendant in Chesternut was not seized, neither was Smith.

Upon initially approaching, this case’s encounter proceeded as follows:

Renforth: Hey partner.

Smith: Yes sir.

Renforth: Do you mind hanging up the phone and talking to me real quick?

Smith: Huh?

Renforth: Do you mind hanging up and talking to me real quick?

Smith: It’s my wife.

Renforth: Ok, [sigh] well, you can talk to her in a minute.

All the while, Smith remained on the phone, having only dropped the phone from his ear while keeping the phone in his hand and the call connected, with Renforth raising his generalized suspicion with Smith. And given Smith’s cooperative response to Renforth, it is fair to conclude that if Smith thought compliance with Renforth’s request to hang up was compelled, he would have complied.

B. Consent

This Court considers six factors when evaluating the voluntariness of consent {see U.S. v Cooper, 43 F. 3d 140 (1995)}:

(1) the defendant’s custodial status;
(2) the presence of coercive police procedures;
(3) the extent and level of the defendant’s cooperation with the police;
(4) the defendant’s awareness of his right to refuse consent;
(5) the defendant’s education and intelligence; and
(6) the defendant’s belief that no incriminating evidence will be found.

Renforth, after speaking with Smith for approximately one minute to obtain Smith’s identifying information, asked Smith if he had any weapons on him and whether Smith had any drugs or anything illegal. Smith immediately and unequivocally answered no to both questions.

Thereafter, Renforth calmly asked, “May I search your person to make sure?” Smith answers “Yes Sir,” but then immediately reverses course and states that he does have a pistol on him. Without touching Smith, Renforth asks where it is on Smith’s body, and Smith lifts his arms and sticks his hip out. Renforth says “Can I have you –” when Smith cuts him off, says “Yes, sir, you can get it” and raises his arms further. In these questions, Renforth is expressly asking for permission to proceed with an action pursuant to a search, and in both instances, Smith answers affirmatively and without qualification.

Again, Renforth did not present an overwhelming show of force with multiple officers in tow nor did he use inappropriately demanding language or an intimidating tone of voice, which could suggest compliance is required. He did not brandish his weapon, nor did he take any other escalatory action. Rather, he calmly requested permission to search Smith. In sum, there is more than enough record evidence to affirm the district court’s finding of fact that the search was conducted with Smith’s consent.