Refusing to respond to requests for consent is not an express refusal of consent under Randolph

Defendant’s refusal to answer a request for consent was not an express denial of consent under Randolph, so defendant’s wife could be asked and she could consent. State v. Clavette, 969 So. 2d 463 (Fla. App. 5 DCA 2007):

In the case before us, Mr. Clavette was a joint occupant of the home whose constitutional rights were clearly implicated by law enforcement’s entry into the home that he shared with Ms. Greene. While not disputing Ms. Greene’s right to consent to the entry, Mr. Clavette argues that his refusal to respond to law enforcement’s entreaties constituted an express refusal on his part to allow the entry, thereby negating Ms. Green’s consent. We disagree.

In Randolph, the Supreme Court held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” 547 U.S. at 120 (emphasis added). By holding that only the express refusal of consent is sufficient to overcome the consent given to the police by another resident, we conclude that the Supreme Court intended that such refusal be direct, firm and explicit, and not one gleaned by implication or inference. Indeed, the Randolph opinion went on to posit an example that has significant implications here. The Court said that “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” Id. at 105. The latter is precisely what occurred here.

Defendant had an expectation of privacy in hiding a gun under the hood of a borrowed car, but it was not an expectation of privacy that society is prepared to recognize as reasonable. United States v. Casseus, 2007 U.S. Dist. LEXIS 84676 (E.D. N.Y. November 15, 2007):

The defendant contends that the gun found in the car must be suppressed because the search of the automobile violated his Fourth Amendment rights. As an initial matter, a borrower of a car may have standing to challenge the search. United States v. Pena, 961 F.2d 333, 337 (2d Cir. 1992) (“It is not the law, however, that only the owner of a vehicle may have a Fourth Amendment privacy interest therein that is protected against governmental invasion. Rather, the borrower of an automobile can possess such an interest.”). The defendant bears the burden of demonstrating that he had “a subjective desire to keep his [] effects private” and that his “subjective expectation must be one that society accepts as reasonable.” Smith v. Maryland, 442 U.S. 735, 740 (1979). In hiding his gun under the hood of the car, defendant no doubt showed a subjective desire to keep the gun private. But he has not shown that his expectation of privacy is one that was reasonable under the circumstances or that society is prepared to accept.

A warrant need only exist, not be in hand, to satisfy Payton. The existence of a warrant need only be shown by a preponderance of the evidence. United States v. Tapia, 2007 U.S. Dist. LEXIS 84574 (D. Kan. November 13, 2007).*

Pulling plaintiff up by his handcuffs states a claim for relief and for which there is no qualified immunity. “Even Officer Larsen testified that lifting someone up by the handcuffs who is in a prone position on the ground would constitute “torture.'” Hoskin v. Larsen, 2007 U.S. Dist. LEXIS 84704 (W.D. Wash. October 31, 2007).*