Where the evidence on consent is equally balanced, the government fails on its burden of proof

Where the evidence on consent is equally balanced, the government fails on its burden of proof on the voluntariness of consent. United States v. Metcalf, 2007 U.S. Dist. LEXIS 55188 (E.D. Tenn. July 30, 2007):

Officer Callahan and Mr. Noblitt testified to what the Court views as equally plausible versions of how the pertinent events may have unfolded on the day in question. Despite the vigorous cross-examination of each witness by opposing counsel, the Court could discern nothing which in any way materially disproved either alternative version of events. Under these circumstances, and in the absence of any substantially corroborative or impeaching evidence on either side, the Court must conclude that the evidence is equally balanced.

Accordingly, the Court finds that the Government has failed to carry its burden of proof of establishing, by a preponderance of the evidence, the Defendant’s consent to the warrantless search of his residence.

Defendant arrested at a motel was asked what room he stayed in, and he told them. It was not a question designed to elicit an incriminating response. Consent was valid. Timmons v. State, 961 So. 2d 378 (Fla. App. 4th Dist. 2007).*

Defendant’s stop on information from another agency on a named informant’s information lacked reasonable suspicion of criminality to justify defendant’s detention. Jamerson v. State, 870 N.E.2d 1051 (Ind. App. 2007):

While a tip’s tendency to identify a determinate person and predict future behavior may support its reliability and the corresponding reliability of its assertion of criminality, here there was never any assertion of criminality in the tip, so the fact that Jamerson was, as described, sitting in a car in the back of a house at a certain address does nothing to buttress a claim of reasonable suspicion. See Washington v. State, 740 N.E.2d 1241, 1245-46 (Ind. Ct. App. 2000), trans. denied. The State made no argument at trial, nor does it claim upon appeal, that the tip from the residents of the house included any assertion of illegality. See id.

Defendant was stopped for a seatbelt violation, and the officer’s prior knowledge of defendant’s propensity for violence justified a patdown, which produced nothing. Then the officer asked about contraband and defendant admitted that he had some marijuana. That question went too far, and the marijuana was suppressed. Pearson v. State, 870 N.E.2d 1061 (Ind. App. 2007).

Officers received a 911 call with anonymous information about defendant’s drug dealing. Officers found him and engaged in conversation, which was legitimate, and reasonable suspicion developed from being in a drug trafficking area, nervousness, and ambiguity in defendant’s answers as to what he was doing there. State v. Taylor, 966 So. 2d 631 (La. App. 5th Cir. 2007).*