U.S. Appeals Court Judge Patricia Wald Dissents in Drug Arrest
U.S. Circut Court Judge Patricia Wald issued a strong dissent regarding the action of District of Columbia police who found drugs after searching the bag of a man who withdrew his initial consent to let them do so (Michael York, "Judge Wald Dissents In D.C. Drug Arrest: Constitutionality of Police Search Upheld," Washington Post, 2/24/93, C8).
The search was upheld by the U.S. Court of Appeals in a decision written by U.S. Circut Court Judge Douglas Ginsburg. The case involved the 1991 arrest of David Michael Carter who was eventually convicted of possession with intent to distribute 50 grams or more of crack cocaine. Carter received a sentence of 10 years. (Parole in the Federal Courts has abolished as of Nov. 1, 1987.)
When initially approached by a police detective on a southbound Amtrak train at Washington, D.C.'s Union Station, Carter was asked by the detective if he could look in Carter's bag, at which point Carter consented. During his search of the bag, the detective found a brown paper bag, which Carter grabbed away. Carter then placed his hand in the bag and withdrew it, at which point the detective said "I take it you don't want me to search that?" and Carter replied "That's right."
Ginsburg said that although the police could not legally search the bag based on Carter's initial consent, they had "reasonable suspicion" to believe Carter had drugs based on his behavior during the search. In her dissent, Wald said a suspect should always be free to withdraw consent for an otherwise illegal search, and said Ginsburg's ruling "takes too big a bite for me out of a fast-eroding Fourth Amendment."