S.D.Tex.: Ct credits def’s version; on govt’s: “Hypothetical could-haves or would-haves simply will not do.” Govt conceded gamma ray scan was search.

Defendant was stopped at the I-35 immigration check point near Laredo. The video is soundless and 14 seconds long. The officer’s version doesn’t seem possible within the time of the video, but the defendant’s does. The officer had the defendant pull his truck forward for a gamma ray inspection (“VACIS”) which the government concedes is a search of his truck. The court credits the defendant’s version and finds the consent invalid. “Hypothetical could-haves or would-haves simply will not do.” United States v. Cordes, 2018 U.S. Dist. LEXIS 115441 (S.D. Tex. July 11, 2018):

Perhaps just as important, the narrative that Defendant relayed to Special Agent DiAndrea more neatly aligns with the timing of events in the video. As was stated above, the vehicle comes to a stop at the nine-second mark, and Agent Kelley can be seen stepping forward to speak to the driver. Before the eleven-second mark, Agent Kelley’s hand rises to begin gesturing Defendant toward something off-screen—sufficient time to make a citizenship inquiry and begin instructing Defendant to pull forward to another lane. Between the twelve- and fourteen-second marks, as Agent Kelley continues to gesture toward something out of view, he seems to be directing Defendant around cones and to the VACIS, just as he testified to having done. (Dkt. No. 39 at 11). What is not clear from the video, what the Government has not convinced the Court of, is that Defendant was ever told what would happen when he followed Agent Kelley’s direction to move to another lane. Hypothetical could-haves or would-haves simply will not do.

In light of the foregoing, the Court concludes that the Government has not proven by a preponderance of the evidence that Defendant consented to a law-enforcement search of his vehicle. In the absence of such a showing, it is unnecessary for the Court to delve into the voluntariness, scope, and authority prongs of the consent-to-search analysis.

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