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It is only a for-sale ad. But it is the stuff of Internet legend. Most versions that you’ve seen probably read something like this: “Motorcycle for sale, 2006 Suzuki GSXR 1000, $10,000, mint condition. For sale only because it was purchased without proper consent of a loving wife. Apparently ‘do whatever the f � – you want’ doesn’t mean what I thought.” Which brings me to the meaning of consent, and to Johnston v. Tampa Sports Authority, 490 F.3d 820 (11th Cir. 2007). The Tampa Sports Authority is the public entity charged with the administration of Raymond James Stadium in Tampa, Fla. The stadium is where the Tampa Bay Buccaneers engage, on a weekly basis during the autumn months, in an activity that sometimes bears a similarity to football. In response to a directive from the National Football League office, the Sports Authority implemented a policy requiring that everyone entering Raymond James Stadium for Bucs games submit to a pat-down search. Anyone refusing to be felt up by the authorities would be denied entry into the stadium. [See ralated article, " Football patdowns enter overtime."] The football season began, and Gordon Johnston showed up. He “verbally objected to the pat-down but allowed it to be conducted so that he could attend the games.” After the second home game Johnston filed a lawsuit, but he kept showing up for games, kept objecting to being searched and kept submitting to searches as a condition of admission to the stadium. On these facts, the 11th U.S. Circuit Court of Appeals found that unfettered, unconstrained relinquishment of known rights that the law terms “consent.” The searches to which Johnston was subjected were consensual, according to the court, because Johnston “chose to submit voluntarily to the search, stating only a verbal objection followed by his submission.” To say that Johnston consented to the search because he acted “voluntarily” in being searched is, of course, ipse dixit. Consent given other than voluntarily is no consent at all. To say that Johnston offered “only a verbal objection” tells us nothing more. How but verbally is a law-abiding citizen to make his objection known? And to say that Johnston’s objection was “followed by his submission” is the most revealing concession of all. The search was not conducted pursuant to his freely given consent, but as a result of his submission to authority. The elements of consent The essence of consent as the law knows that term is not mere choice, but choice free from material adverse consequences imposed upon the choice by government. An arrestee is free to withhold his consent to answer the policeman’s questions because his silence will (at least in theory) not be met with a beating in the police station or an adverse comment in the courtroom. It would be absurd to speak of a confession as being consensual if the arrestee had been told, “You have the right to remain silent . . . as long as you can stand the pain.” One wonders how far the 11th Circuit is willing to take the doctrine that protest, no matter how vigorous, does not vitiate consent as long as the party from whom something is sought eventually capitulates to the demands made upon him or her. In a prosecution for rape at common law, it was necessary to evidence the complaining witness’s nonconsent by showing that she resisted to the fullest of her ability � judges and juries expected to see, at a minimum, scratch marks on the face of the defendant. Nowadays we teach young men that “no” means “no.” I hesitate to analogize to Johnston’s plight, because it cheapens the horrors visited upon a rape victim to compare them to the inconvenience visited upon Johnston. But that isn’t the point. Johnston had a constitutional right to be free from the search of his person. Upon a proper understanding of the doctrine of consent, no more was required than his simple, “Don’t touch me” in order to preserve that right. By what constitutional alchemy does the 11th Circuit convert Johnston’s “no” into a “yes”? There is but one professional football team in Tampa, and that team plays but one game a week. The choice Johnston was given by the government was, decidedly, not free from material adverse consequences. He had the right to refuse to be searched . . . as long as he could stand the pain of not attending his beloved Bucs’ games. Sober, sentient adults may roll their eyes at the thought that the coercive effect of the loss of Buccaneers games would be sufficient to cause an American citizen to relinquish his right to be free from the warrantless search of his person. That isn’t the point, either. It may well be that Johnston could and would withstand the rack and the thumbscrew rather than permit himself to be searched, but could not and would not withstand a Sunday without Bucs football. So he surrendered. But he didn’t consent. Milton Hirsch is the managing partner of Milton Hirsch PLLC, a criminal trial and appellate law firm based in Miami.

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