CA5: Unsolicited consent to search cell phone dissipated taint of unlawful detention

Even assuming, without deciding, a constitutional violation in the length of defendant’s detention, his unsolicited offer to have the police search his cell phone dissipated any taint and attenuated the cell phone search from the detention. United States v. Montgomery, 2015 U.S. App. LEXIS 1291 (5th Cir. January 27, 2015):

The second factor—which requires an evaluation of intervening circumstances—favors the Government. Most fatal to Montgomery’s argument on this point is that the consent he gave to search his cell phone was unsolicited. “[E]ven less is required to show that the consent is voluntary and untainted” when the consent is unsolicited. LaFave, Search & Seizure § 8.2(d); see also id. (“In determining whether the consent was, as the Court put it in Brown, ‘obtained by exploitation of an illegal arrest,’ account must be taken of … whether the consent was volunteered rather than requested by the detaining officers ….” (quoting Brown, 422 U.S. at 603)); United States v. Canseco, 465 F.2d 383, 385 (5th Cir. 1972) (holding evidence found in appellant’s house admissible where defendant “not only invited the agents to search his premises but later insisted on a second search,” and where “the searches were initiated as a result of appellant’s unsolicited invitation”); United States v. Mendoza-Salgado, 964 F.2d 993, 1012 (10th Cir. 1992) (“While her unsolicited consent does not end the inquiry, it weighs heavily into our conclusion that agents did not coerce Mrs. Garcia into signing the consent form.”); Hubbard v. Tinsley, 350 F.2d 397, 398 (10th Cir. 1965) (finding unsolicited consent where habeas petitioner, initially under investigation for murder, told officers they could use a key found in his possession to open a bus station locker that led to evidence supporting his subsequent burglary prosecution).

Montgomery repeatedly requested that the officers access his cell phone; he stated he wanted the officers to remove the photos so that he could conceal them from his father. There is no indication in the record that the officers requested to search the cell phone, or were independently interested in its contents. That unique intervening circumstance separates this particular act of consent from the doubtless more frequent occurrence: consent provided after an officer’s request to conduct a search.

This entry was posted in Attenuation, Cell phones, Consent. Bookmark the permalink.

Comments are closed.