N.D.Okla.: Court finds officer mistaken on when consent given, and suppresses

“Fundamentally, the burden of proof for consent is on the government, United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993), and, as noted above, any ambiguity in the testimony will be resolved against the government. The Court finds the witnesses’ testimony as to the existence of an alleged first consent ambiguous. The Court finds it more likely that the first consent about which Officer Moyer testified was a mistaken memory of the later request for verbal consent. The Court finds it more probable that the first conversation between defendant and Officer Moyer concerned the search of the vehicle only, with no discussion of defendant’s home. Thus, the Court concludes that the evidence shows that defendant made two statements of consent: the first, a verbal consent given approximately ninety minutes after the stop began; and the second, a signed consent given a few minutes after the first and directly after defendant signed the Miranda waiver form.” The officer is not lying; he’s merely mistaken. Alleged consent suppressed. United States v. Bretado, 2014 U.S. Dist. LEXIS 128622 (N.D. Okla. September 15, 2014).

Defendant was acting suspicious in a Macy’s in Brooklyn. Store security guards detained him and searched his backpack. This was purely a private search. United States v. Pass, 2014 U.S. Dist. LEXIS 127801 (E.D. N.Y. September 11, 2014).*