In their opinions: What did you think would happen?

Having worked hard to appear suspicious in an armed-and-loaded visit to the park, Embody cannot cry foul after park rangers, to say nothing of passers-by, took the bait.

– Sixth Circuit Judge Jeffery Sutton, in Embody v. Ward.

Leonard Embody went for a leisurely Sunday afternoon stroll in a nature area. He was outfitted with a camouflage suit and a Draco AK-47 pistol slung across his chest, all loaded up with a 30-round clip, all perfectly legal under Tennessee law, which allows handguns in public places such as nature areas.

He had a permit for the pistol. The pistol was barely legal: if the barrel had been a half-inch longer, it wouldn’t have qualified as a handgun. One other thing, the tip of the barrel was painted orange, typically done to indicate a weapon is actually a toy.

Embody had an audio recording device with him, apparently expecting that he’d draw some attention.

Mission accomplished. One person saw Embody and put his hands in the air without any prompting. Two others found a park ranger and expressed concern about Embody. An elderly couple told a ranger that they saw a man walking around with an assault rifle.

A ranger stopped Embody. Embody produced his permit. The ranger was unable to tell if the weapon was legal. The police were consulted. A ranger ordered Embody to the ground at gunpoint and disarmed him. After a couple hours, having determined that Embody’s weapon was legal, the authorities gave it back to him and sent him on his way.

Embody celebrated his release by suing the ranger that took him down at gunpoint. The weapon was legal, Embody said. That’s all that matters to make a case under the Fourth and Second Amendments.

The federal district court made short work of the case by granting the ranger summary judgment. Embody fared no better on appeal.

“[T]he constitutional question is whether the officers had reasonable suspicion of a crime, not whether a crime occurred. Otherwise, all failed investigatory stops would lead to successful § 1983 actions,” said Sutton, disposing of Embody’s Fourth Amendment claim.

As for the claimed Second Amendment violation, § 1983 provides remedies for federal law violations. Even if the ranger violated state law, Embody didn’t explain how that would rise to a federal constitutional offense, Sutton said.

Applying the legal principles in this case was like … well, it was like a walk in a park.

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In their opinions

“It should take more than a shoebox to vitiate a resident’s consent to search the premises.”

Judge Jeffrey S. Sutton, 6th U.S. Circuit Court of Appeals, dissenting in United States v. Taylor.

The cops had an outstanding warrant for Mark Taylor and thought he might be at Sabrina Arnett’s apartment. They sent a heavy-duty task force to find out.

Arnett said he wasn’t there but, sure, they could come in and look around. When they took her up on the invitation, she changed her story and admitted he was inside.

In the second-floor master bedroom, they found him stripped to his underwear. They cuffed him and took him downstairs. Arnett then gave oral and written permission for more searching. They didn’t ask her or Taylor if they could look through Taylor’s stuff. And the only warrant they had was for Taylor’s arrest.

Upstairs in a spare bedroom, men’s clothes were lying about. In the closet, there was an assortment of men’s clothes, children’s clothes and toys. In a closet corner, partially covered by men’s clothes, there was a closed shoebox for a pair of basketball shoes.

Inside was a jail-identification bracelet for Taylor, and the handgun and ammo that later formed the basis of a felon-in-possession charge against him.

What’s this all about, the cops asked Arnett. She said that Taylor didn’t live there but kept some of his stuff in the spare bedroom. And, she said, Taylor never said she could look in the shoebox.

In the federal district court, Taylor argued the shoebox’s contents should be suppressed. That’s right, said the judge. From the majority opinion in Taylor:

First, the court determined that Arnett did not have actual or common authority to consent to a search of Taylor’s belongings because Taylor had not granted Arnett access to his property.

Next, the court held that Arnett did not have apparent authority to consent to a search of the shoebox. The court reasoned that because the spare bedroom and the closet contained men’s clothes and because the shoebox was partially covered with a piece of men’s clothing, the ownership of the shoebox was ambiguous.

In reaching this conclusion, the court found that the task-force officers in fact believed that the shoebox belonged to Taylor when they opened it.

The government appealed, solely on the basis that Arnett had the apparent authority to consent to the shoebox search.

Nothing doin’, wrote Judge Ronald Lee Gilman:

The apparent-authority doctrine excuses otherwise impermissible searches where the officers conducting the search “reasonably (though erroneously) believe that the person who has consented” to the search had the authority to do so. …

Although Arnett had no children, the closet in the spare bedroom contained a mix of children’s clothes, toys, and men’s clothes. Underneath an item of men’s clothing lay the closed shoebox. In short, nothing in the closet indicated that the items within it belonged to Arnett or were regularly used by her.

Under these circumstances, when the officers discovered and were considering whether to open the shoebox, a reasonable person would have had substantial doubts about whether the box was subject to mutual use by Arnett. …

Although many items that belong to a houseguest like Taylor might also be used by the dwelling’s resident (such as books, compact discs, magazines, or a portable stereo), a shoebox that is surrounded by the guest’s clothes and that sits in the corner of a closet in a little-used room is not likely to be such an item.

Gilman cited United States v. Waller, 426 F.3d 838 (6th Cir. 2005), in which Waller stored a suitcase and several filled garbage bags at a friend’s apartment. The friend had no idea what was in them and never looked inside.

After the cops arrested Waller on a bond violation, the friend okayed a search of the apartment. There were two guns in the suitcase but the Sixth Circuit threw them out, “holding that whether Waller’s suitcase was ‘subject to mutual use’ by Waller’s friend was unclear under the circumstances.”

Gilman said Taylor’s guns and ammo should be suppressed because his situation was even murkier than Waller’s. In Waller, wrote Gilman:

the main argument for ambiguity was that the police found a packed suitcase and were told that Waller was storing items in his friend’s apartment. But there is no description in Waller of where the suitcase was found, other than in “a closet,” or whether the suitcase was next to other items that obviously belonged to Waller or whose ownership was unclear.

Here, the appearance of the shoebox itself and the items in the room where the shoebox was found indicated that the box did not belong to Arnett. There were apparently no such surrounding items in Waller, yet this court still suppressed the contents of Waller’s suitcase.

In his dissent, Sutton conceded that the majority’s result was legally correct but he still wasn’t buying it:

The majority today extends to shoeboxes a degree of Fourth Amendment protection that our court has previously afforded to luggage. I agree that our precedents permit this extension, but I do not think they compel it. I dissent because I think the extension unwise.

The apartment’s tenant here gave consent for the officers to search it. I think that consent ought to be effective as to an unsecured container on the premises, absent a clear indication that some other person exclusively controls the container.

Luggage might routinely meet that test, but shoeboxes I think should not, absent some unusual circumstance not present here.

Sutton said the cases in other circuits are all over the map. Some hold that the cops can never search a closed container unless they positively know it is controlled by the person who consented to the search. Others hold the cops can have a look if they “do not have reliable information that the container is not under the authorizer’s control.” Said Sutton:

To my knowledge, the Supreme Court has never decided specifically the extent to which a resident’s consent to search her premises is effective as to containers within it.

The result has been appreciable entropy among the circuits.