Congressional Research Service: Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses by Richard M. Thompson II, Legislative Attorney (September 6, 2012):

The prospect of drone use inside the United States raises far-reaching issues concerning the extent of government surveillance authority, the value of privacy in the digital age, and the role of Congress in reconciling these issues.

Drones, or unmanned aerial vehicles (UAVs), are aircraft that can fly without an onboard human operator. An unmanned aircraft system (UAS) is the entire system, including the aircraft, digital network, and personnel on the ground. Drones can fly either by remote control or on a predetermined flight path; can be as small as an insect and as large as a traditional jet; can be produced more cheaply than traditional aircraft; and can keep operators out of harm’s way. These unmanned aircraft are most commonly known for their operations overseas in tracking down and killing suspected members of Al Qaeda and related organizations. In addition to these missions abroad, drones are being considered for use in domestic surveillance operations, which might include in furtherance of homeland security, crime fighting, disaster relief, immigration control, and environmental monitoring.

Although relatively few drones are currently flown over U.S. soil, the Federal Aviation Administration (FAA) predicts that 30,000 drones will fill the nation’s skies in less than 20 years. Congress has played a large role in this expansion. In February 2012, Congress enacted the FAA Modernization and Reform Act (P.L. 112-95), which calls for the FAA to accelerate the integration of unmanned aircraft into the national airspace system by 2015. However, some Members of Congress and the public fear there are insufficient safeguards in place to ensure that drones are not used to spy on American citizens and unduly infringe upon their fundamental privacy. These observers caution that the FAA is primarily charged with ensuring air traffic safety, and is not adequately prepared to handle the issues of privacy and civil liberties raised by drone use.

This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. …

Government’s motion to compel buccal swabs is seeking a search, and reasonableness should be presented by the government through a search warrant application, not a motion for samples. United States v. Hardrick, 2012 U.S. Dist. LEXIS 125559 (E.D. La. September 5, 2012):

Because obtaining a saliva sample is a search, the Government must first request a search warrant. See Terry v. Ohio, 392 U.S. 1, 20 (1968)(“[T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.”); Schmerber v. California, 384 U.S. 757, 770 (1966) (“Search warrants are ordinarily required for searches of dwellings, and, absent emergency, no less could be required where intrusions into the human body are concerned.”). The Government has not identified any exigency that would permit dispensing with the warrant requirement. A warrant is therefore required before the Government may obtain saliva samples from the defendant. Accordingly, Government’s motion to compel is premature and will not be granted by this Court.

SFGate.com: RI court: Texts can’t be used in child murder case by Michelle R. Smith, AP:

Incriminating text messages about a man accused of killing his girlfriend’s 6-year-old son can’t be used at trial because the police search that found them was illegal and violated the man’s Fourth Amendment right against unreasonable searches and seizures, a state Superior Court judge ruled Tuesday.

Superior Court Judge Judith Savage ruled that Michael Patino had a reasonable expectation of privacy in his text messages and that evidence from his cellphone was collected illegally, before police obtained search warrants. She also ruled that because of the illegal search, almost all the evidence obtained by police was tainted and couldn’t be used at trial.

Update: State v. Patino, 2012 R.I. Super. LEXIS 139 (R.I. Super. September 4, 2012):

When the precious rights of individuals to keep private the expression of their innermost thoughts collides with the desire of law enforcement to know all at all costs, this Court must take special care to ensure that what it says today is fair game for police conduct does not sacrifice on the altar of tomorrow the rights that we hold most dear under our state and federal constitutions.

In this criminal case, the State indicted Defendant Michael Patino for the alleged murder of Marco Nieves, the six-year-old son of Defendant‘s girlfriend, Trisha Oliver. The case against the Defendant is built largely on cell phone text messages that the State claims were sent by the Defendant to his girlfriend and that the Defendant claims were illegally obtained by the Cranston Police Department, without a warrant, in violation of his privacy rights. Defendant protests not only the way in which the police have attempted to build a case against him, but the charge of murder itself; he contends that he at no time intended to hurt, much less kill, Marco, and that the text messages at issue do not prove otherwise.

ACLU Asks Appeals Court to Reconsider Cell Phone Tracking Decision by Catherine Crump:

Yesterday we asked the full Sixth Circuit Court of Appeals to consider the arguments in our amicus brief that it should rehear a case decided by a three-judge panel in a ruling last month that undermined the privacy rights of everyone who carries a cell phone.

In the case, law enforcement agents required Melvin Skinner’s cell phone company to provide them with his GPS coordinates continuously for three days as he drove across the country. The agents did not get a warrant or demonstrate probable cause. Using the data, the agents tracked Skinner down, searched his motor home, and arrested him for his alleged role as a drug courier. On appeal, Skinner argued that the warrantless GPS phone tracking violated his Fourth Amendment rights.

Update: Arstechnica.com: Groups seek to overturn ruling allowing warrantless phone tracking / ACLU says decision misunderstands cell technology and Supreme Court precedent by Timothy B. Lee.

The complete absence of a reference to time in the affidavit for this search warrant rendered it stale, and a stale warrant is not subject to the good faith exception. United States v. Carroll, 2012 U.S. Dist. LEXIS 124728 (E.D. N.C. August 31, 2012):

As already noted, [officer] Doyle’s affidavit provides no information as to when the informants actually observed the criminal activity at 405 New River Dr. Pursuant to [U.S. v.] Doyle, the court concludes that the good faith exception to the exclusionary rule therefore does not apply. The Fourth Circuit has made clear that a reasonable police officer will not rely on warrants containing no information as to when the criminal activity actually occurred at the place to be searched. Doyle, 650 F.3d at 474-75. Thus, the officers’ reliance on the warrant and affidavit was not reasonable and the Leon good faith exception cannot save the officer’s search.

The court notes that in cases in which an affidavit provides evidence of an ongoing criminal enterprise, evidence that otherwise would be “stale” can provide a sufficient basis for a finding of probable cause. See, e.g., United States v. Minis, 666 F.2d 134, 140 (5th Cir. 1982) (holding that four-month-old evidence was not stale because investigation involved ongoing marijuana cultivation operation); United States v. McCall, 740 F.2d 1331, 1336-37 (4th Cir. 1984) (describing multiple cases allowing longer time periods between observation of the alleged criminal activity and issuance of the warrant when police have evidence of an ongoing criminal enterprise). These cases are distinguishable: the affidavits included information regarding when the criminal activity was purportedly observed. The affidavit supporting the search of Carroll’s home provided no dates on which any of the alleged criminal activity occurred. Thus, the court is unable to determine, even allowing for the wider time frame permissible when evidence of ongoing criminal activity is documented, whether the observations reported in the affidavit were sufficiently temporally proximate.

Note: Doyle is both the name of the officer and the case that the court relies on: United States v. Doyle, 650 F.3d 460, 474 (4th Cir. 2011).

A six year old girl with multiple disabilities caused by being born with cocaine addiction was not subjected to a Fourth Amendment violation by being put in a school restraint desk that she could crawl out of. This was different than other cases from this circuit where the child was physically restrained. Ebonie S. v. Pueblo School District 60, 11-1273 (10th Cir. August 28, 2012):

Plaintiff devotes much effort to arguing that the use of the desk was prohibited under Colorado law and was contrary to well-established educational standards. But it is not our office to decide the lawfulness of the desk under state law or the wisdom of using the desk as a matter of pedagogical policy. We firmly decline to offer any view on those questions. Moreover, we express no view as to the claims under the ADA and the Rehabilitation Act. We hold only that use of the desk under the circumstances presented did not violate the Fourth or the Fourteenth Amendments.

. . .

Finally, we find significant that the restraining mechanisms were not attached to Ebonie’s body. This fact distinguishes Ebonie’s circumstances from the cases the plaintiff cites in which other circuits have found in-school seizures. See Gray v. Bostic, 458 F.3d 1295, 1306 (11th Cir. 2006) (handcuffing student was unreasonable seizure); Doe ex rel. Doe v. Haw. Dep’t of Educ., 334 F.3d 906, 910 (9th Cir. 2003) (taping student’s head to a tree was a seizure). Physically binding a student is a much more significant imposition on her dignity and bodily integrity than the use of the desk in this case.

If one or more of these facts were absent, our conclusion might be different. But in light of these three factors, we conclude that Ebonie was not seized within the meaning of the Fourth Amendment. We affirm the district court’s grant of summary judgment on this claim.

A 19 month delay between seizure of a computer and its forensic evaluation because of a backlog of cases in state crime lab was not an unreasonable seizure. United States v. Lovvorn, 2012 U.S. Dist. LEXIS 123677 (M.D. Ala. April 24, 2012).

“Video and/or audio recording devices” in a search warrant included DVDs, VHS tapes or 8mm tapes. United States v. Csanadi, 2012 U.S. Dist. LEXIS 124130 (D. Conn. August 31, 2012).*

The existence of an arrest warrant justified defendant’s stop, no matter what the CI said. United States v. Heflin, 2012 U.S. Dist. LEXIS 123008 (N.D. Ohio August 14, 2012).*

Cell phone site data warrant was issued on probable cause. The court took an in camera submission of what the probable cause was at the government’s request because it involved a hit on a witness. The search warrant for defendant’s house was not a general warrant. While there might have been an over-seizure of things, the government supports the seizure as being with probable cause of drug trafficking and murder. The remedy for over-seizure is excluding that part, not suppressing the whole search unless it is flagrant and here it isn’t. United States v. Meregildo, 2012 U.S. Dist. LEXIS 123879 (S.D. N.Y. August 28, 2012).*

Stop for swerving was valid. “The magistrate judge found, and this court agrees, that the total elapsed time is similar to the times found constitutional by the Eighth Circuit. The magistrate judge concluded that the initial stop of 19 minutes, plus the 7 to 10 minutes for the dog to alert thereafter, was not of constitutional significance.” United States v. Rodriguez, 2012 U.S. Dist. LEXIS 123426 (D. Neb. August 30, 2012).*

Defendants’ stop was justified by reasonable suspicion of credit card fraud trying to buy gift cards with stolen credit cards. United States v. Antoine, 2012 U.S. Dist. LEXIS 123591 (W.D. Pa. August 30, 2012).*

Missouri v. McNealy, scheduled for conference on September 24. SCOTUSBlog here.

Issue: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

Maryland v. King, conference not yet set. SCOTUSBlog here and here:

Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.

Chief Justice Roberts granting a stay July 31st telling us how he’s voting, Maryland v. King, Roberts, Ch.J. in chambers:

To begin, there is a reasonable probability this Court will grant certiorari. Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act. See United States v. Mitchell, 652 F.3d 387 (CA3 2011), cert. denied, 566 U.S. ___ (2012); Haskell v. Harris, 669 F.3d 1049 (CA9 2012), reh’g en banc granted, 2012 WL 3038593 (July 25, 2012); Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702 (2007), cert. denied, 553 U. S. 1054 (2008); see also Mario W. v. Kaipio, 2012 WL 2401343 (Ariz. 2012) (holding that seizure of a juvenile’s buccal cells does not violate the Fourth Amendment but that extracting a DNA profile before the juvenile is convicted does).

The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government. Reply to Memorandum in Opposition 3; see 114 Stat. 2728, as amended, 42 U.S.C. §14135a(a)(1)(A) (authorizing the Attorney General to “collect DNA samples from individuals who are arrested, facing charges, or convicted”). Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government. These factors make it reasonably probable that the Court will grant certiorari to resolve the split on the question presented. In addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.

Finally, the decision below subjects Maryland to ongoing irreparable harm. …

This “all persons” warrant was overbroad, but the executing officers get qualified immunity. Church Of Universal Love & Music v. Fayette County, 2012 U.S. Dist. LEXIS 124359 (W.D. Pa. August 31, 2012):

On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them.

A majority of state and federal courts addressing the issue have followed DeSimone’s pronouncement that an “all persons” warrant is constitutional if the information given the issuer established probable cause to believe that all persons on the premises at the time of the search are involved in the criminal activity. See, e.g., Owens v. Lott, 372 F.3d 267, 276 (4th Cir. 2004). Otherwise stated, such a warrant is authorized only if “the supporting affidavit establishes probable cause that evidence of illegal activity will be found upon every person likely to fall within the warrant’s scope at the time of execution.” United States v. Swift, 720 F. Supp. 2d 1048, 1056 (E.D. Ark. 2010).

Decisions of the United States Court of Appeals for the Third Circuit are in accord with DeSimone’s approach. See United States v. Guadarrama, 128 F. Supp. 2d 1202, 1208 n. 6 (E.D. Wis. 2001) (citing Baker v. Monroe Twp., 50 F.3d 1186 (3d Cir. 1995)). Consistent with DeSimone, in United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), our Court of Appeals stated that “a warrant may authorize the search of all persons present if there is probable cause to believe that a premises is dedicated to criminal activity.” Id. at 212 (citing Lott, 372 F. 3d at 276). In doing so, the Court of Appeals cited, with approval, the following recitation of situations in which an “all persons” warrant might be appropriate: “a building or apartment used as a crack house, a barn used as a methamphetamine lab, or a warehouse used exclusively as a storage place for arms.” Id. (quoting Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1997)). Thus, Abbott reflects DeSimone’s suggestion that an “all persons” warrant may be suitable with reference to a limited space, used for a limited purpose.

In this case, the affidavit tendered to the issuing judge did not set forth reasonable grounds to believe that all persons on the premises at the time were engaged in criminal activity, or that the premises were dedicated to criminal activity. The information contained in the affidavit did not suggest a limited space such as a building, barn, or warehouse – instead, it described a variety of apparently open, broadly delineated locations – such as “vendors row,” a grassy dirt road running between the stage and camping areas, or the camping sites themselves.

Defendant had no standing that the cash he turned over to court clerk for bail money wouldn’t be examined by the authorities. United States v. Donald, 2012 U.S. Dist. LEXIS 122537 (E.D. Ky. August 6, 2012).*

Defense counsel was not ineffective for not moving to suppress letters received by defendant’s co-defendant in jail that were used to impeach the co-defendant. Robinson v. United States, 2012 U.S. Dist. LEXIS 123901 (N.D. W.Va. July 10, 2012),*

The warrant for defendant’s place and smartphone was issued with probable cause, and the alleged reckless disregard defendant seized on wasn’t. United States v. Kraeger, 2012 U.S. Dist. LEXIS 122673 (M.D. Pa. August 29, 2012).*

Nineteen month old information is not stale in a child pornography case. The court cites one case with three year old information. United States v. Vaskas, 2012 U.S. Dist. LEXIS 122792 (E.D. Pa. August 29, 2012).*

On the government’s unrebuted evidence that defendant signed the consent form and appeared to understand it, the search was found to be by consent. United States v. Young, 2012 U.S. Dist. LEXIS 122699 (E.D. Tenn. August 7, 2012).*

The officer detained defendant for 20 minutes without deciding what he was going to do about the alleged traffic offense, and the entire stop just lasted too long. The government’s asserted reasonable suspicion fails. United States v. Prado, 2012 U.S. Dist. LEXIS 122558 (D. Utah August 28, 2012)*:

The government has not met its burden here. Trooper Berrie stopped Ms. Prado for her failure to signal, a minor traffic violation. And yet he testified that twenty minutes into the stop, he was still unsure whether he was going to give Ms. Prado a ticket. (Tr. at 40.) After determining that neither Ms. Prado nor her passenger had any outstanding warrants, there was no reason for Trooper Berrie to detain Ms. Prado further. The government’s “general interest in criminal investigation, without more, is generally insufficient to outweigh the individual interest in ending the detention.” United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc).

The government claims that Trooper Berrie had reasonable suspicion to continue the search for a number of reasons. … Given the language barrier, these small inconsistencies do not amount to reasonable suspicion of criminal activity.

Defendant walked into a house while a search warrant was being executed there for drugs. Apparently the officers were too busy conducting the search to stop him. Once inside, he was subject to a frisk for weapons without more. United States v. Ward, 2012 U.S. Dist. LEXIS 122051 (W.D. Mo. August 14, 2012):

The Court finds that the officers were justified in conducting the frisk of defendant Ward for safety reasons without regard to any particularized suspicion. As set forth in United States v. Patterson, 885 F.2d 483, 485 (8th Cir. 1989), “The possible danger presented by an individual approaching and entering a structure housing a drug operation is obvious. In fact, it would have been foolhardy for an objectively reasonable officer not to conduct a security frisk under the circumstances.” There was no violation of defendant’s constitutional rights.

Victims of an internet Ponzi scheme lacked standing to raise a Fourth Amendment challenge to the government’s effort to forfeit the money from the scam. Disner v. United States, 2012 U.S. Dist. LEXIS 122425 (D. D.C. August 29, 2012).*

Extra-jurisdictional extraction of data from an iPhone under a search warrant was not a violation of the Fourth Amendment. United States v. Parrish, 2012 U.S. Dist. LEXIS 121165 (E.D. N.C. August 27, 2012).*

In a warrant for thermal imaging, police received an anonymous letter about a grow operation. They corroborated all the obvious information of who had the place and what car he drove, but they then found he had unusual electrical consumption. The warrant was issued with probable cause. [Sounds a lot like Gates.] United States v. Schmidt, 2012 U.S. Dist. LEXIS 120643 (W.D. N.Y. July 9, 2012).*

Defendant was not told that he could refuse consent, but the consent was on video and it appears to be consent. His detention was based on reasonable suspicion. United States v. Binford, 2012 U.S. Dist. LEXIS 121816 (E.D. Tenn. August 28, 2012), R&R 2012 U.S. Dist. LEXIS 121814 (E.D. Tenn. July 20, 2012).*

arstechnica.com: Court ruling that NSA spying violated 4th Amendment remains secret / EFF sues US to uncover details of court decision on phone and e-mail spying by Jon Brodkin:

Last month, a letter to Congress noted that “on at least one occasion” a secretive US court ruled that National Security Agency surveillance carried out under a 2008 act of Congress violated the Fourth Amendment’s restriction against unreasonable searches and seizures. But the actual ruling remains secret. Decisions handed down by the US’s Foreign Intelligence Surveillance Court (FISC) are classified “because of the sensitive intelligence matters they concern,” the letter from the Office of the National Intelligence Director to Sen. Ron Wyden (D-OR) states.

The explanation wasn’t good enough for the Electronic Frontier Foundation, which filed a Freedom of Information Act (FOIA) request for details on the FISC ruling or rulings. …

Wired.com: We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena by David Kravets:

When Golden Valley Electric Association of rural Alaska got an administrative subpoena from the Drug Enforcement Administration in December 2010 seeking electricity bill information on three customers, the company did what it usually does with subpoenas — it ignored them.

That’s the association’s customer privacy policy, because administrative subpoenas aren’t approved by a judge.

But by law, utilities must hand over customer records — which include any billing and payment information, phone numbers and power consumption data — to the DEA without court warrants if drug agents believe the data is “relevant” to an investigation. So the utility eventually complied, after losing a legal fight earlier this month.

Meet the administrative subpoena (.pdf): …

Volokh Conspiracy: Can Magistrate Judges Deny Statutory Surveillance Orders Based on Prospective Fourth Amendment Concerns? by Orin Kerr:

On October 2, the Fifth Circuit will hold oral argument in case No. 11–20884, In Re Applications of the United States for Historical Cell-Site Data. In this case, the United States applied for a court order under the Stored Communications Act to compel cell phone providers to disclose location information about particular phones suspected in criminal investigations. The magistrate judge denied the applications on the ground that he expected that the orders would be executed in ways that will violate the Fourth Amendment. The government has appealed the denial of the orders, arguing that the orders will be executed in ways that comply with the Fourth Amendment. Although the government is the only party to the litigation, several amici have chimed in on the merits to defend the denial of the applications on the ground that the magistrate judge was right to fear that the orders would be implemented in ways that would violate the Fourth Amendment. You can read the various briefs here, and the government’s reply to the amicus briefs is here.

New law review article: Florence, Atwater & The Erosion of Fourth Amendment Protections for Arrestees by Julian Simcock, Stanford Law Review (Forthcoming) on SSRN. Abstract:

If there is an animating imperative behind the Supreme Court’s 1979 decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip searching arrestees, courts must seek a careful balance. The Fourth Amendment, the Court held, “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Decades later, the Supreme Court appears to have deviated from Bell’s moorings. In Florence v. Chosen Board of Freeholders, the Court examined the constitutionality of blanket search policies, which require that all arrestees be strip searched regardless of individualized suspicion or the nature of the offense. In a 5-4 ruling, the Court upheld such searches as constitutional. For the first time, the Court ruled that prisons seeking to implement strip search policies were free to dispense with any level of reasonable suspicion or tailored justification. I argue in the following analysis that Florence constitutes an unnecessary erosion of Fourth Amendment protections for arrestees. In addition, the most unsettling issues posed by Florence — those which hint at the potential for future abuse — remain unresolved.

The marijuana residue on defendant’s shirt when he was ordered out of the car during a stop was in plain view. The court requires exigent circumstances, too, to search the car, and it found it from the stop being at 2:30 am. State v. Willette, 2012 Ohio 3836, 2012 Ohio App. LEXIS 3386 (4th Dist. August 22, 2012).*

When the car was stopped, the defendant’s movements in the car justified a frisk of him and the car for weapons. This was not a Gant search incident. City of Euclid v. Hull, 2012 Ohio 3801, 2012 Ohio App. LEXIS 3359 (8th Dist. August 23, 2012).*

Officers investigating a home invasion went to the basement to find a cage for a small dog that would be left behind when they left the house. They found marijuana. The entry to the basement was reasonable and not a pretext for further search. State v. Rivera, 2012 Ohio 3755, 2012 Ohio App. LEXIS 3313 (12th Dist. August 20, 2012).*

A motion to suppress a search warrant tolls speedy trial. State v. Hoang, 2012 Ohio 3741, 2012 Ohio App. LEXIS 3308 (9th Dist. August 20, 2012).*

Crossing the centerline is reason for a traffic stop. State v. McCandlish, 2012 Ohio 3765, 2012 Ohio App. LEXIS 3337 (10th Dist. August 21, 2012).*

Defendant was stopped for matching the clothing description after an aggravated burglary, and it was reasonable. State v. Garrison, 2012 Ohio 3846, 2012 Ohio App. LEXIS 3397 (2d Dist. August 24, 2012).*

Defendant was stopped, and the officer called for backup indicating that he wanted to search the car. When he talked to the defendant, the officer asked for and obtained consent within ten seconds of handing back the DL. This was found to be an independent act of free will. United States v. Ansourian, 2012 U.S. App. LEXIS 17879 (5th Cir. August 23, 2012)*:

We consider three factors to determine whether the consent was an independent act of free will: “(1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct.” Jenson, 462 F.3d at 407 (citations omitted).

The first factor weighs in favor of Ansourian. Officer Averette asked for Ansourian’s consent just ten seconds after telling Ansourian that he was free to leave and returning his paperwork. Thus, the district court properly concluded that “the first factor supports a finding that defendant’s consent was not an independent act of free will.”

The second factor of intervening circumstances indicates the consent was an independent act of free will. Prior to asking for consent, Officer Averette communicated to Ansourian that “You’re free to go.” At this point, Officer Averette also returned Ansourian’s license and registration. We have previously identified both of these facts as intervening circumstances. … The knowledge that one is free to leave, accompanied by the return of the license and registration, cuts the causal chain between the unconstitutional detention and the consent. …

Finally, although there is some support for both sides, the third factor of flagrancy and purpose of police misconduct leans in favor of the government. On the one hand, Officer Averette said that he wanted to search a vehicle when he radioed for backup, and we have held that if the clear purpose of the detention was to obtain consent to search the vehicles, then that factor weighs against the government. … However, following an evidentiary hearing, the district court found that the unlawful detention spanned only seven minutes, and the officers did not purposefully use that period of illegal detention to procure the defendant’s consent to search the vehicles. In addition, the video clearly shows that the consent was not obtained by any misrepresentations made to the defendants as Officer Averette told Ansourian that he was looking for “anything illegal.” Moreover, once the search began, Ansourian never tried to stop it, revoke his consent, or complain about the length of the search. To the contrary, Ansourian offered to remove the trailer fenders to allow the officers to access the car.

We conclude that the district court’s determination that Ansourian’s consent was voluntary and an independent act of free will was not error. …