M.D.La.: Video of stop did not show consent

The video of defendant’s stop was inconclusive on the question of whether defendant consented. The officer’s actions were not indicative of a true consent. United States v. Paul, 2010 U.S. Dist. LEXIS 7994 (M.D. La. January 29, 2010)*:

Other circumstantial factors also weigh against consent. As the audiovisual recording reveals, the defendant was not in custody voluntarily. The government contends the police did not use coercive procedures to obtain consent. However, Dohm used “rough language” to subdue him. After the defendant had spread his arms and legs and leaned over Dohm’s car, Dohm patted down his body. When the defendant complained, Dohm patted the back of the defendant’s head three times and told him to calm down. A few moments later, Dohm raised his hand and told the defendant to “quit [expletive] yelling at me. You [expletive] yell at me one more time and I’m going to have a problem.” The fact that the defendant subsequently did not protest when Dohm began to retrieve the defendant’s license does not demonstrate he impliedly consented to a search at that point. Moreover, when the defendant’s phone rang, Dohm reached into the defendant’s pants pocket, removed the phone and opened it, shining his flashlight on the display. His investigative purpose is not clear, but his disregard for the defendant’s consent at that point is plain.

Corroboration of details of a CI is important to insure that the CI isn’t just making things up. This is a close case on PC in the affidavit for the search warrant, but close calls go in favor of the warrant. United States v. Rivera, 2010 U.S. Dist. LEXIS 7731 (D. V.I. January 28, 2010)*:

When viewed under the totality of the circumstances, this Court cannot say that the Magistrate Judge lacked a substantial basis to find probable cause that a search of Defendant’s residence would reveal evidence of drug trafficking. The purpose of corroboration is to ensure that the tipster is honest and reliable. Gates, 462 U.S. at 239. But, “the risk that the informant is lying or in error need not be wholly eliminated. Rather, what is needed is that the probability of a lying or inaccurate informer has been sufficiently reduced by corroborative facts and observations.” Khounsavanh, 113 F.3d at 284 (internal quotations omitted). Here, the tipster’s claims that Defendant was involved in drug trafficking were partially corroborated by police observations of drug dealing in the area where the tipster indicated as well as the ongoing investigation into Defendant stemming from the discovery that his car was used to transport a significant amount of marijuana.

The Court acknowledges that this case is a close call. The Court also recognizes that the historical preference for searches conducted pursuant to a warrant mandates that this Court give “great deference” to the Magistrate Judge’s determination of probable cause (Gates, 462 U.S. at 236) and “not to engage in after-the-fact scrutiny that take[s] the form of de novo review.” Ritter, 416 F.3d at 263-64. “[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Hodge, 246 F.3d at 305. The deferential standard with which this Court must view the magistrate’s initial probable cause determination tips the scale in favor of determining that the magistrate had a substantial basis for finding probable cause existed.