M.D.Tenn.: Consent to search bags off a bus did not include destroying picture frames to search them

Consent to search defendant’s bags when he came off a bus did not include destroying picture frames to look inside them. His failure to object after being held for hours also wasn’t consent. Also, defendant’s invocation of his right to counsel doesn’t prohibit asking for consent. United States v. Leon-Santoyo, 2015 U.S. Dist. LEXIS 17947 (M.D.Tenn. February 13, 2015):

Here, there were plenty of reasons why Defendant did not object to the officers tearing apart the frames. When the frames were torn apart, Defendant had already been in custody for at least a couple of hours, having first being confronted at the bus station where he exhibited signs of being scared and intimidated, then taken to the Sheriff’s Department where he was interviewed despite requesting to call home for a lawyer, and then transported to Nashville. He had been advised that he had the right to remain silent and anything he said could be used against him, and it is entirely plausible that he believed objecting to the frames being torn apart could be construed as an incriminating statement, something he had been reluctant to make up to that point in time. Most tellingly, when leaving the Sheriff’s Office, he was told that he and the officers were going to Nashville to secure a warrant and so, when Detective Holton left the holding room and returned some time later, it was reasonable for Defendant to assume that officers had secured the warrant they said they were going to get.

Finally, the Government argues that even if Defendant did not consent to a search, the methamphetamine should not be suppressed because of the good faith exception articulated in United States v. Leon, 468 U.S. 897 (1984). The Court disagrees.