CA8: Record supports consent because that’s all district court had

Defendant put a backpack in the shed of Allen, and Allen told the police he didn’t put a lock on the shed and consented to cutting it off and the entry. An officer testified that defendant consented too, and defendant didn’t testify to contradict. Thus, the record supports the finding of consent. United States v. Wolff, 2016 U.S. App. LEXIS 13632 (8th Cir. July 27, 2016):

In this case, the undisputed evidence adduced at the suppression hearing established that Allen owned the shed and that Wolff, who had some personal property inside, put a padlock on the shed. To meet its burden of establishing consent to search, the government presented testimony from three of the officers at the scene. Officer Howard and Deputy McCloud each testified Allen denied installing the padlock and verbally authorized the officers to search his shed. Officers Howard and Frankeberger testified Wolff not only consented to the search, but also helped the officers locate a pair of bolt cutters to remove the padlock and then cut the padlock off himself—giving the officers access to conduct the search.

Forgoing his right to testify in support of his motion to suppress, see Simmons v. United States, 390 U.S. 377, 394 (1968) (“[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.”), Wolff did not contradict the officers’ testimony that he gave consent. Allen—Wolff’s only witness—denied giving the officers specific permission to remove Wolff’s padlock and did not recall speaking with Deputy McCloud.