D.Ariz.: Consent to search given after Miranda violation was involuntary

Defendant’s consent was involuntary where it occurred after officers violated his Miranda rights by ignoring his request for counsel. It was reasonable for defendant to conclude that his rights did not matter and it was futile to resist. United States v. Nejbauer, 2009 U.S. Dist. LEXIS 107329 (D. Ariz. November 2, 2009):

The context in which Mr. Nejbauer made his decision to consent is also relevant to a determination of voluntariness. See United States v. Washington, 490 F.3d 765, 775 (9th Cir. 2007) (the context in which the defendant consented to the search of his car was important to the determination of voluntariness). Schneckloth instructs courts to “determine[] the factual circumstances surrounding the confession, assess[] the psychological impact on the accused, and evaluate[] the legal significance of how the accused reacted.” Schneckloth, 412 U.S. at 226 (citing Culombe v. Connecticut, 376 U.S. 568, 603 (1961)). Factors to be considered include, “the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” Id. (internal citations omitted). In addition, “[i]n examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 229.

The circumstances surrounding Mr. Nejbauer’s decision to consent, taken together, suggest that there may have been a lack of true voluntariness. There is nothing in the record to suggest that Mr. Nejbauer has minimal schooling or is of low intelligence. Mr. Nejbauer is also a mature man of forty-eight with some criminal history more than a decade ago. On the other hand, Agent Leising’s conduct–successfully dissuading Mr. Nejbauer from talking to a lawyer and immediately thereafter pressuring him to consent to the search–would reasonably suggest to Mr. Nejbauer that it was simply futile to withhold his consent to Agent Leising’s demands. Furthermore, Agent Leising’s plainly misleading statements regarding the need to dispense with a lawyer and cooperate right away with the FBI in order to receive a sentencing reduction would reasonably lead Mr. Nejbauer to believe that, if he did not comply with Agent Leising’s requests immediately, he would lose the opportunity to obtain leniency in the future.

Storage unit landlord had actual authority to enter for emergencies. Here, water was seen coming out of the unit, and that gave cause to enter to check on it. Defendant had unregistered firearms located inside. United States v. Smith, 353 Fed. Appx. 229 (11th Cir. 2009) (unpublished).*

Plaintiffs’ claims survive summary judgment in their excessive force claim where they were awakened asleep in a truck at the Ft. Worth Stockyards, and they lashed out. While the officers were concerned that they may have been ill or crime victims, that justified approaching the plaintiffs. There was a fact dispute as to the need for the force used. Peterson v. City of Fort Worth, 588 F.3d 838 (5th Cir. 2009).*