18 U.S.C. § 3731 giving government ability to appeal an order of suppression does not give the defendant the power to cross-appeal another suppression issue

When government appeals grant of a suppression motion as to one issue (a statement) under 18 U.S.C. § 3731, the defendant cannot cross-appeal under that statute another issue he lost on (denial of suppression of a search). The defendant must wait for the conclusion of the case. The district court’s order of suppression was clearly erroneous on the causation question for the statement. United States v. Marasco, 487 F.3d 543 (8th Cir. 2007):

Harms cannot satisfy her burden of establishing the causal nexus between the illegal search of her purse and her statements. At best, Harms shows that it is remotely possible that she made her statements after the search of her “stuff” began. The record indicates that Simones informed Harms that methamphetamine and items used to manufacture methamphetamine were in the motel room, and then Harms made incriminating statements. Harms argues that these referenced items were discovered during the search of her purse, but there is nothing in the record to indicate that the referenced items came from the search of Harms’s “stuff.” These items could have been those observed in plain view (the pipes and scale), those legally seized from Marasco incident to his arrest (the bags of methamphetamine), those discovered during the search of the room, or those found in Harms’s “stuff.” Harms’s scenario is the least likely to have occurred because although the record is unclear on when the search of the room began, the record indicates that most of the search occurred while Simones was questioning Harms.

Because the record lacks support for Harms’s contention that Simones confronted her with evidence obtained during the illegal search of her purse before she made the incriminating statements, the District Court’s finding that Harms’s statements were “given immediately after the search” is clearly erroneous.

Magistrate’s interlineations on affidavit showed, not that the magistrate was not neutral and detached, but that he was fulfilling his judicial role by questioning the factual scenario. Also, the continuous nature of the allegations was sufficient to overcome defendant’s claim of staleness of information. United States v. Uhrich, 228 Fed. Appx. 248 (4th Cir. 2007)* (unpublished):

Simply stated, Johnston’s bare allegation that the interlineations demonstrate that the Magistrate Judge lacked objectivity, without more, is an insufficient basis for us to find that the search warrant was invalid. In fact, and as posited by the government, we are of the firm belief that the interlineations in the affidavit establish not that the Magistrate Judge ceased being “neutral and detached” but instead that the Magistrate Judge carefully considered the affidavit before deciding whether to issue the search warrant.

Defendant clearly consented by his words, and failure to object during the search as to a scope issue is also a showing of consent. United States v. Thaqui, 2007 U.S. Dist. LEXIS 39669 (E.D. Mo. May 31, 2007):

When asked if they were carrying any illegal contraband, Defendant said, “If you want to search the vehicle go ahead. The quicker you search, the quicker we can go.” Defendant clearly consented to the search. The consent included the hole near the rear driver’s side wheel-well. None of the occupants objected at the time when Detective Pratt looked in the hole and saw something wrapped in cellophane that did not look natural. Nor did the occupants voice any objection upon further inspection with the screwdriver. Based on the totality of the evidence, the Court finds that the officers had the legal right to search the vehicle, including the search of the hole.