S.D.W.Va.: Police lie about having SW when they had cotenant consent deprived defendant of opportunity to object; not suppressed

Defendant was dealing drugs out of his girlfriend’s house, and she was upset about it. She met with the police, signed a consent to search and gave them the key. They entered but told defendant they had a search warrant. While this lie may have deprived the defendant of a meaningful opportunity to object under Randolph, the court found that suppression was not the proper remedy for this misleading conduct. United States v. Rush, 2014 U.S. Dist. LEXIS 32632 (S.D. W.Va. March 13, 2014), rev’d United States v. Rush, 2015 U.S. App. LEXIS 22212 (4th Cir. Dec. 21, 2015) (posted here):

When law enforcement arrived at the home, they had not only the primary occupant’s consent to search. They also had the key. It is difficult to imagine a more concrete set of circumstances that would authorize a Fourth Amendment search. While Mr. Rush was inaccurately informed about the legal basis justifying the search, one can only speculate concerning whether he would have exercised his rights under Randolph had he known otherwise. While the intersection of Butler and Randolph comes into sharp focus upon reflection and study, it would have been less than apparent to the officers confronting the circumstances as they unfolded.

Additionally, law enforcement did not inaccurately inform Mr. Rush about the warrant in order to impair his ability to object. It did so in a justifiable effort to protect Ms. Wills. There is no basis in the record to suggest a pattern of constitutional wrongdoing. There is likewise a vanishingly low likelihood of future recurrences. The officers did not, as appears required by Supreme Court precedent, violate Mr. Rush’s Fourth Amendment rights deliberately, recklessly, or with gross negligence, nor is there any recurring or systemic negligence on its part. The deterrent capacity of the exclusionary rule in this instance is thus substantially diminished if not altogether absent.

Combined with the limited deterrent effect is the vast cost to the judicial system and society in the event that suppression is granted. Mr. Rush was cooperative throughout his initial encounter with law enforcement and said he wanted to talk. Upon observing that Sgt. Winkler had found the eight bags, Mr. Rush volunteered, without prompting, that three bags contained crack and five bags held a counterfeit substance. Without the benefit of Miranda warnings, he volunteered significant inculpatory information in response to questions from Lt. Napier. He went so far as to sign a written confession.

His cooperation did not there end. Mr. Rush gave oral permission to the officers to search his vehicle and provided them his cell phone. Then, an hour or two later, Mr. Rush appeared at Metro Drug Unit headquarters in Dunbar to further identify his source in Columbus.

In view of the limited deterrent effect and the grave consequences that suppression would visit upon the judicial and societal interests in further pursuing the prosecution, suppression is plainly unauthorized under Supreme Court precedent.

The court, accordingly, ORDERS that Mr. Rush’s motion to suppress be, and hereby is, granted to the extent that it seeks a finding of the unlawfulness of the search and denied as to its residue, particularly insofar as it seeks exclusion of evidence in the case.