Category Archives: Consent

W.D.Tex.Bankr.: 4A does not extend to civil discovery requests

Posts to a “secret” Facebook group weren’t protected by any reasonable privacy interest in civil litigation. Social media isn’t protected by any privacy interest. “Defendant does not cite, and the Court could not find, any case that extends the Fourth … Continue reading

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N.D.Okla.: Not readily finding def in his motel room justified its protective sweep

The protective sweep of defendant’s motel room was reasonable, and it was also justified by a search waiver. There was a woman in the room who was not the defendant they were looking for. United States v. Banegas, 2021 U.S. … Continue reading

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D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent

The record doesn’t support the trial court’s finding of consent to a squeeze of a bag that revealed a gun. The officer was reaching for the bag asking for consent. “The government played footage from Denton’s body worn camera (‘BWC’), … Continue reading

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S.D.N.Y.: Defense counsel giving passcode to def’s cell phone at AUSA’s request wasn’t consent; merely avoiding delay of decryption

An AUSA’s request of defense counsel for defendant’s cell phone’s passcode was not a request for consent. It was merely to avoid the delay of decryption. United States v. Mangini, 2021 U.S. Dist. LEXIS 66764 (S.D. N.Y. Apr. 6, 2021):

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WI: Consent to search a computer was limited to def’s son’s user files; forensically searching recycle bin exceeded the scope of consent

Defendant granted consent to search only his son’s files on his computer. The forensic analyst searched the recycle bin, too, and that exceeded the scope of consent. Shared files were not within the scope of consent. State v. Jereczek, 2021 … Continue reading

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D.P.R.: When def asks for a SW and refuses consent, officers can’t just ask others

Defendant repeatedly asked for a search warrant when the officers sought consent, so there was no consent. He was present and objecting, and they couldn’t look to another to provide consent. “Considering the agents’ repeated representations, the Court cannot expect … Continue reading

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ND: While a shrug isn’t consent, mumbling, nodding, and lifting one’s hands can be

While a shrug isn’t consent, mumbling, nodding, and lifting one’s hands can be consent on the totality. The consent was a permissible extension of the encounter. State v. Stands, 2021 ND 46, 2021 N.D. LEXIS 43 (Mar. 24, 2021):

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ID: Police knowledge def was attempting to destroy evidence of a murder including burning the body and other evidence was exigency for entry

Police knowledge defendant was destroying evidence of a violent crime on his premises was exigency for a warrantless entry. “Lopez reported to the police that he had seen Davis’s body.” Police knew: “Smith was actively attempting to destroy evidence by … Continue reading

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CA3: No REP in non-legal jail email

There is no reasonable expectation of privacy in inmate non-legal jail email. Robinson v. Pennsylvania Dep’t of Corr., 2021 U.S. App. LEXIS 7900 (3d Cir. Mar. 18, 2021). Defendant consented to come in to talk about the investigation and to … Continue reading

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IL: Def’s failure to answer request for consent is not implied consent

When asked for consent, defendant didn’t answer. The officer’s testimony that “he not tell me no” was not consent, which had to proved by the state. People v. Banta, 2021 IL App (4th) 180761, 2021 Ill. App. LEXIS 112 (Mar. … Continue reading

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CA9: Changing argument from disputing facts of PC to facts don’t show PC is waiver

“Bruno changed his argument on appeal. In the district court, he disputed the government’s factual representations supporting the search of his apartment. On appeal, he no longer argues that the search warrant application contained factual inaccuracies or material omissions. Rather, … Continue reading

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OR: Entry onto curtilage to closely examine car for evidence of hit-and-run exceed implied consent of entry

After a hit-and-run accident, police took a bumper part left at the scene. They ultimately located the probable car at defendant’s house. The police, as any other visitor, had implied authority to enter the curtilage but not to look at … Continue reading

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CA11: Encounter was consensual; race of occupants of car never a valid concern

The court finds that the police-citizen encounter here was consensual, so the question of reasonable suspicion doesn’t have to be decided. The race of the occupants is never a concern in consent. United States v. Knights, 2021 U.S. App. LEXIS … Continue reading

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CA9: DV victim, def’s wife, consented to search for firearms

Defendant’s wife called the police as a domestic violence victim, and she was found to have consented to a search of their garage and gun safe. She was emotional, considering what she’d been through, but consent wasn’t involuntary. She was … Continue reading

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CO: POs reasonably believed def parolee consented to broad search of apt, including boyfriend’s stuff

Defendant’s girlfriend was on parole, and the parole officers came to the house for a search. The parole officers reasonably believed that she had apparent authority to consent to a search of the premises. She believed she was moving there, … Continue reading

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MO: DNA could be taken from def’s genitalia without a warrant on arrest shortly after alleged crime because of exigency

Exigent circumstances permitted the police to take DNA samples from defendant’s genitalia within minutes of an alleged rape. Time was of the essence because the DNA could be lost if defendant were left to his own devices or even possibly … Continue reading

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E.D.Tenn.: Def wasn’t removed to avoid his being asked for consent under Randolph

The record doesn’t support defendant’s claim that he was removed to avoid his ability to object to consent under Randolph. In addition, his detention was otherwise objectively reasonable. United States v. Shaw, 2021 U.S. Dist. LEXIS 35405 (E.D. Tenn. Feb. … Continue reading

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E.D.N.C.: Some deception to gain entry is permitted, but this one went too far

The government’s ruse that defendant’s name was being used to fraudulently get prescriptions to gain entry into his house made his consent involuntary. United States v. Burch, 2021 U.S. Dist. LEXIS 35265 (E.D. N.C. Feb. 25, 2021):

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DC: Putting one’s hand over officer’s to stop a patdown is withdrawal of consent

“The trial court erred as a matter of law in ruling that Mr. Ford’s actions did not revoke consent. An objectively reasonable officer would have understood Mr. Ford’s act of placing his hand on the outside of his pocket exactly … Continue reading

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AR: Officer letting himself in because it was raining after homeowner answered knock on door was not implied consent

The officer here came to the door and knocked. When the occupant opened the door, the officer entered because it was raining. The trial court found implied consent. The court of appeals disagrees. It was acquiescence. Abernathy v. State, 2021 … Continue reading

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