CA7: Defense witness on apparent authority completely unbelievable

This district court did not credit defendant’s witness on the question of consent. As for credibility, “The court relied on the officers’ corroborative testimony, Hearnes’s ‘willingness to lie to law enforcement and under oath,’ and Hearnes’s demeanor throughout her testimony, during which she did not make eye contact, yawned, rolled her eyes, and ‘acted fidgety.’ Consequently, the court credited [the officers’] testimony that Hearnes had signed the consent form prior to the search, noting that the consent form was inventoried at the police station at 12:57 a.m., prior to the time that Hearnes said she had signed it.” She also admitted to the police living with defendant at the time of the search, had apparent authority to consent, then fudged on that at the suppression hearing. United States v. Brandon, 2014 U.S. App. LEXIS 22307 (7th Cir. November 25, 2014). [Note: When a witness comes off this bad on the stand, defense counsel better not be the source of what the district court found was obviously fabricated testimony, but being kind and saying that it just didn’t believe her. Defense counsel can be tarnished by these witnesses, too. Do your best to rehabilitate but don’t lose your credibility as an advocate over a bad witness. Defense lawyers have the choice on what witnesses to call, not the defendant (except for his own testimony). The government carries the burden of proof on consent, but they can make it off their own witnesses. See Treatise §§ 60.08 & 60.47 n.3]

The officer had reasonable suspicion defendant was under the influence because, when pulled over at 2 am driving away from a bar, he held up his hands, wouldn’t roll the window down but a couple of inches, and still smelled of alcohol. City of Findlay v. Jackson, 2014-Ohio-5202, 2014 Ohio App. LEXIS 5063 (3d Dist. November 24, 2014).*