While there was no reasonable suspicion for the continued detention of the defendants, the court finds the driver’s consent was valid and the product of independent free will sufficient to overcome it. United States v. Eskichyan, 2010 U.S. Dist. LEXIS 109836 (M.D. La. October 12, 2010)*:

The Court does not doubt Officer Averette’s credibility, nor his training and experience. The Court also does not doubt that defendants’ criminal histories may have been in Officer Averette’s mind and that he was frightened when he called for backup. But no amount of training or experience can turn the simple, objective facts that defendants had criminal histories and exhibited ordinary nervousness into articulable suspicion that defendants were about to commit a crime. If such common circumstances qualified as reasonable suspicion, then many — if not most — interstate travelers would be subject to prolonged detention. Weighing the totality of the circumstances, the Court finds that the officer lacked the requisite reasonable suspicion to detain defendants after the computer check was complete, and therefore, the detention was unconstitutional.

[Oh, come on. The continuation of the stop was clearly invalid, but the consent was valid anyway without a notice to the driver of his right to refuse?]

The officer pulled in behind defendants’ car in the driveway, but they did not see it until they were out of the car. This was not a stop because they were on foot when they talked to the officers. The blocking of the car was not a stop because they were not stopped. The passenger lacked standing to challenge a search of the car. Thus, the passenger cannot invoke Brendlin. United States v. Allison, 398 Fed. Appx. 862 (4th Cir. 2010) (unpublished).*

Once the court suppresses evidence, it cannot be included in the determination of whether the defendant should continue to be detained on the weight of the evidence against the accused. United States v. Barner, 743 F. Supp. 2d 225 (W.D. N.Y. 2010):

Some courts have held that evidence which is being suppressed for purposes of trial may nevertheless be considered in evaluating the “weight of the evidence” factor under § 3142(g). See Pina-Aboite, 97 Fed. Appx. 832, 2004 WL 1053235, *2 (“In a detention hearing, the district court is permitted to consider the evidence sought to be suppressed as if it were admissible”); United States v. Jay, 261 F.Supp.2d 1235, 1240 (D.Or. 2003) (“A court should have as much information as possible to evaluate properly whether a defendant poses any risk of danger to the community if released. Thus, even though this Court suppressed evidence for purposes of trial, that evidence may speak loudly concerning community safety because it involves convicted felons in unlawful possession of multiple weapons and cocaine”).

Notwithstanding these authorities from other circuits, for the following reasons I conclude that the suppressed evidence should be given little or no weight in applying this factor. In deciding to consider the suppressed evidence for purposes of pretrial detention, the court in Jay applied a “cost-benefit” analysis, citing United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984): “The court concludes … [that] consideration of the suppressed evidence is warranted under cost-benefit analysis, particularly when applying the statutory release factors that bear on community safety”. Jay, 261 F. Supp.2d at 1240.

Defendant showed a reasonable expectation of privacy in his deck because it was shielded from view by bushes and could not be seen from the road. State v. Orde, 161 N.H. 260, 13 A.3d 338 (2010) (decided under state constitution):

We begin by addressing the trial court’s conclusion that the defendant did not exhibit an expectation of privacy in the deck. The defendant’s property is lined with trees. There is no evidence that the deck could be seen from the road. The side of the deck facing the road is lined with lilac bushes, further shielding the deck from passersby. Although Corrado testified that from the side door of the home he could see the deck steps and the existence of the deck, there is no evidence that he could see whether anything or anyone was on the deck. There is no path leading from the side door of the home to the deck steps. Further, the lilac bushes near the deck would impede any perceived route from the door to the deck because, as Corrado testified, in order to get to the deck he had to walk “in between” the lilac bushes where there was “a little bit of an opening.”

Under these facts, the defendant exhibited an expectation of privacy in his deck. The defendant made efforts to obscure the deck and the activities on the deck from public view. There is no evidence that the deck was visible from the road. The placement of the deck and the lilac bushes prevented Corrado, or any other member of the public, from viewing the activities on the deck from the driveway. The defendant further exhibited an expectation of privacy in his deck by not creating a path connecting the side door with the deck steps and placing the lilac bushes in between the side door and the deck. Accordingly, we conclude that the trial court erred, as a matter of law, in finding that the defendant did not exhibit an expectation of privacy.

Defendant’s stop in a “pull off area” along a New Hampshire highway in the winter was without justification. The officer parked and walked up and found two men smoking marijuana. This case was decided under the state constitution. State v. Boutin, 161 N.H. 139, 13 A.3d 334 (2010):

In this case, the officer testified that he approached Boutin’s vehicle, “[j]ust to see if everything — if anything was wrong, make sure everything was okay.” He testified that he could not tell if there was an accident, if the vehicle was abandoned or if any occupants may have needed assistance or had health concerns. He also observed that Boutin’s vehicle was pulled off to the side of the road, but facing the wrong way. As in Boyle, while the officer may have had generalized concerns about the vehicle and its potential occupants, he did not describe any specific and articulable facts that justified the intrusion of Boutin’s protected interests. Boutin’s car was parked legally in a pull-off area and the officer did not observe any obvious signs of an accident, that the car was disabled, or that the passengers were in any type of distress. See State v. Burgess, 657 A.2d 202, 204 (Vt. 1995). In short, the officer’s concerns amounted to little more than a hunch. While the officer testified that he was concerned in part because it was dark and snow covered the ground, “[w]inters are traditionally long in [New Hampshire], and we cannot adhere to a theory that essentially renders [Part I, Article 19] protections seasonal.” Id.

Defendant’s traffic stop led to the officer smelling marijuana in the car. That was probable cause for a search, and Gant did not apply. State v. Dickerson, 2010 Ohio 5787, 2010 Ohio App. LEXIS 4869 (8th Dist. November 24, 2010).*

Trial court’s lack of findings of fact and conclusions of law makes it impossible for the court of criminal appeals to decide the suppression issues. Remanded. State v. Norton, 2010 Tenn. Crim. App. LEXIS 1001 (November 24, 2010).*

The police entered with exigent circumstances for a reported shooting. Having found the shooting victim, a search of the upstairs was unreasonable because there was no justification for going up there. United States v. Wolfe, 2010 U.S. Dist. LEXIS 135485 (E.D. Pa. December 21, 2010).*

Failure to signal on a parking lot is not a violation of the Missouri vehicle code, so defendant’s stop was unreasonable. Stop suppressed. State v. Loyd, 326 S.W.3d 908 (Mo. App. 2010).*

“[S]ociety does not recognize a reasonable expectation of privacy in blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient” when requested by law enforcement for DUI. State v. Davis, 161 N.H. 292, 12 A.3d 1271 (2010):

To the extent that the defendant may have a reasonable expectation of privacy in his medical records generally, see In Re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 226, 999 A.2d 210 (2010), we conclude that society does not recognize a reasonable expectation of privacy in blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient, where those results are requested by law enforcement for law enforcement purposes in connection with an incident giving rise to an investigation for driving while under the influence of intoxicating liquors or controlled drugs. See RSA 329:26.

We also disagree with the defendant that the United States Supreme Court’s decision in Ferguson v. Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), leads to a different result. …

Defendant was arrested on drug charges and made a telephone call from jail telling an unknown person where “the money” was. Police got a search warrant for that place to seize the money as forfeitable property. Officers could execute the search warrant outside the city limits under Texas law. $27,877.00 v. State, 331 S.W.3d 110 (Tex. App.–Ft. Worth 2010).*

Defendant would not have won the suppression motion that defense counsel did not file on his behalf; therefore, he was not prejudiced by the alleged ineffectiveness. State v. Milby, 2010 Ohio 6344; 2010 Ohio App. LEXIS 5305 (2d Dist. December 23, 2010).*

Anonymous report that defendant was suicidal and had a gun in his vehicle was an insufficient basis for a stop. Only the officer involved in the stop testified at the suppression hearing, and he had no factual basis for the radio call. State v. Dunn, 2010 Ohio 6340, 2010 Ohio App. LEXIS 5310 (2d Dist. December 23, 2010).*

Defendant had not been detained long before he consented to the search of his car. This was not a question of refusal of consent with repeated requests extending the stop. State v. Riddlebaugh, 2010 Ohio 6345, 2010 Ohio App. LEXIS 5308 (2d Dist. December 23, 2010).*

While the video from the police car was inclusive as to the cause of the defendant’s stop, the court relies on the testimony of the witnesses and concludes that the stop was valid. An ensuing inventory was also valid. United States v. Carter, 2011 U.S. Dist. LEXIS 38018 (M.D. Fla. March 10, 2011).*

The entry into defendant’s motel room on alleged exigent circumstances was unlawful, and the consent derived from that entry was, too. United States v. Slaughter, 2011 U.S. Dist. LEXIS 37564 (N.D. Ga. April 6, 2011),* R&R 2011 U.S. Dist. LEXIS 37502 (N.D. Ga. March 1, 2011).*

UPS detained a suspicious package after an attempted delivery, and they called the police. A drug dog alerted on the package, and it was detained pending getting a search warrant for the place of the coming controlled delivery. All this happened over a weekend, which was not an unreasonable delay because the package was not going to be delivered before Monday anyway. United States v. Tapia, 2011 U.S. Dist. LEXIS 37545 (D. Minn. March 2, 2011).*

On FavStocks.com, from the liberal, freethinking city of San Francisco: San Francisco City Government Wants to Scan IDs of Residents Entering Entertainment Venues:

The next time you enter a San Francisco movie theater, the following demand might be made. “Your papers please.” With no regard to the Fourth Amendment, city leaders are considering a bill that would require residents to have their ID scanned whenever they attended any kind of entertainment venue in which more than 100 people attend, which basically could mean any place.

Plaintiff’s request for a preliminary injunction against TSA’s current screening procedures with backscatter screening or a patdown alternative is denied. Plaintiff fails to show a likelihood of success on the merits of his Fourth Amendment claim. Corbett v. United States, 2011 U.S. Dist. LEXIS 38531 (S.D. Fla. March 1, 2011):

Airport check points advance the public interest inasmuch as “absent a search, there is no effective means of detecting which airline passengers are reasonably likely to hijack an airplane.” Singleton v. Comm’r of Internal Revenue, 606 F.2d 50, 52 (3d Cir. 1979). “It is hard to overestimate the need to search air travelers for weapons and explosives before they are allowed to board the aircraft. As illustrated over the last three decades, the potential damage and destruction from air terrorism is horrifically enormous.” United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005). However, even with the grave threat posed by airborne terrorist attacks, the vital and hallowed strictures of the Fourth Amendment still apply: these searches must be reasonable to comport with the Constitution. Id.

Balancing the intrusion on plaintiff’s privacy against the government’s interest in the safety of the passengers and the public at large, the undersigned finds that the subject TSA screening procedures are reasonable and not in violation of the Fourth Amendment. Following the tragic events of September 11, 2001, Congress tasked TSA with protecting the public from violence and piracy aboard aircrafts. See 49 U.S.C. § 44903(b). It is evident that the security conducted by TSA is in furtherance of a legitimate governmental interest to deter and prevent terrorist attacks against this country’s airline industry.

To that end, TSA subjects plaintiff and other passengers to additional screening in its efforts to protect the public from terrorist attacks. The government has demonstrated that the use of AIT machine and revised pat-down procedures is not more extensive than necessary and not as intrusive as plaintiff suggests in view of the increased threat of non-metallic explosives. Specifically, the AIT machines do not produce photographs. … Rather, the AIT’s applies a filter that displays body contours and outlines rather than a detailed image of a person’s anatomy. … Further, the security officer viewing the image does not see the passenger as the images are viewed in separate location. …

In addition, TSA provides notice to the public of the use of the AIT machines and advises the passenger that they may decline AIT screening and, instead, undergo a pat-down. … These pat-downs are necessary to detect explosives, chemical weapons or other dangerous items that could be secreted in the body. … To ensure that pat-downs are minimally invasive, they are conducted by the same gender security officers and passengers have the right to request a private screening with a witness. …

While plaintiff contends that the challenged procedures are unreasonably invasive, the undersigned finds that they do not violate the Fourth Amendment. Thus, plaintiff has failed to establish a likelihood of success on the merits on his constitutional claim.

Dispatch got report from the city’s ShotSpotter system of gunshots from a moving car, and they sent officers to the scene where witnesses identified defendant’s car. That was reasonable suspicion for the stop, and that ripened into probable cause. United States v. Thompson, 2011 U.S. Dist. LEXIS 38760 (M.D. Ala. February 14, 2011)*:

In this case, the fact that Officer Capps did not hear gun shots himself is immaterial. He relied on the information from dispatch that the ShotSpotter system alerted to possible gun shots in the area. Moreover, when Officer Capps arrived on the scene, multiple witnesses pointed to the defendant’s vehicle and told Capps that the man firing the weapon was in the vehicle. This information was sufficient to justify stopping Thompson’s vehicle. Thereafter, reasonable suspicion developed into probable cause when Capps saw the gun in plain view between the driver’s seat and the console. When Capps saw the gun, he then had probable cause to arrest Thompson for discharging a weapon. Consequently, the court finds that the defendant’s rights secured by the Fourth Amendment were not violated because reasonable suspicion existed for the stop.

The record supports the USMJ’s finding that the defendant consented to a search of his person. United States v. Fletcher, 2011 U.S. Dist. LEXIS 38751 (E.D. Tenn. April 8, 2011).

Defendant’s own testimony was that he consented to a search of his person in hopes of avoiding arrest, but that does not make the consent invalid. United States v. Fletcher, 2010 U.S. Dist. LEXIS 142580 (E.D. Tenn. July 14, 2010)* [same case as previous one].

Does Police Use of GPS Devices Need Supreme Court Guidance? by Joshua Engel on Law.com:

In January 2010, two Ohio men were suspected of responsibility for a string of armed burglaries. Sheriff’s deputies placed a GPS tracking device on a car registered to one of the men, and then monitored the location of the vehicle. On the ninth day of monitoring, a home owner reported that two armed men had just broken into his home and shot his dog. The deputies checked the GPS tracking and observed that the suspect’s car was in the vicinity of this home invasion, and were able to track the movements of the car back to one of the suspects’ homes. The men were arrested and later convicted of the armed burglary. An appeal, alleging that the use of the GPS device violated the Fourth Amendment, is pending.

GPS devices are attractive to law enforcement personnel because they are small, can easily be attached to vehicles, and have a long battery life. They can cheaply and efficiently track the precise locations of numerous people in real-time via the internet. But the constitutionality of the use of these devices is one of the most debated and litigated issues facing law enforcement agencies, prosecutors, defense attorneys, and judges.

CBS Boston: Thermal Cameras Show Too Much?

A thermal imaging project in the city of Boston has been put on hold because of privacy concerns.

Boston officials had hoped to have aerial and street-level photos taken across about four square miles of the city this winter using infrared cameras that would show heat loss in the city homes.

Officials planned on sharing the photos and analysis with homeowners, and were hoping the findings would increase enrollment in efficiency programs and also create business opportunities.

Probable cause for defendant’s computer for child pornography was shown by linking the IP address of a download to defendant’s address. United States v. Kuntz, 2011 U.S. Dist. LEXIS 37893 (D. N.D. March 29, 2011).*

Officers approached the defendant’s house up the driveway and could smell fresh marijuana. Defendant did not challenge the search warrant, but he did challenge how the information for it was obtained. The officers’ approach up the driveway was not unreasonable under the Fourth Amendment. United States v. Robbins, 2011 U.S. Dist. LEXIS 37578 (N.D. Iowa April 5, 2011)*:

Applying these principles to the instant action, the Court concludes that officers Hoist and Hoeger did not conduct a “search” when they proceeded up the driveway, through the open gates of the breezeway, onto the porch, and knocked on Defendant’s front door. It was, in fact, the only way that anyone could approach Defendant’s front door. With the gates to his breezeway open, the Court believes that Defendant had no reasonable expectation of privacy in the area adjacent to his front door. Accordingly, the officers were lawfully in the area where they first identified the smell of marijuana, thereby leading to the establishment of probable cause for a search warrant.

Defendant was stopped for a traffic violation on a bicycle for not signaling a turn. The stop was partially audio recorded by the officer, which is credited where necessary. There was a struggle and defendant was tasered. After he was subdued, a search produced a gun. It was admissible. United States v. Kelly, 2011 U.S. Dist. LEXIS 37600 (W.D. La. March 15, 2011).*

In a child pornography case, the affidavit for the search warrant described a child being made to watch “pornography.” If it is adult pornography, it is relevant to “grooming” a child for sex and would be a proper subject of a search. Also, a Franks challenge fails because nothing that was allegedly omitted would detract from the probable cause. United States v. Clark, 2011 U.S. Dist. LEXIS 37863 (S.D. Ill. April 7, 2011):

The affidavit need not be considered with the omitted material included, but even with that information, there was probable cause to issue a search warrant. Mr. Clark protests the breadth of the warrant, alleging: (1) there was no nexus between the alleged sexual assault at 3952 Torch Club Road and his residence at 3022 Glenwood; and (2) there was no probable cause that child pornography would be found. “[A] finding of probable cause does not require direct evidence linking a crime to a particular place,” but there are, in fact, connections to 3022 Glenwood here. … The potentially incriminating ‘apology’ text was likely sent from Mr. Clark’s home computer. The existence of any pornography on Mr. Clark’s computers was relevant, as pornography can be indicative of ‘grooming’ a child for sexual assault—especially in this instance where a child reported that Mr. Clark showed her pornography before telling her to disrobe. It is fairly probable that Mr. Clark’s apparent proclivity for using live children for his sexual gratification makes him more likely to possess graphic depictions of children for his sexual gratification. Detective Vucich averred that there is often a connection between sexual offenses and possession of child pornography. Moreover, Mr. Clark is suspected of possessing child pornography during the October 2008 investigation. Detective Vucich averred that possessors of child pornography often hoard their collections over long periods of time, so it was probable that Mr. Clark had child pornography at his new address.

Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829 (2009). Excerpt:

The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.

Police employ drug-detection dogs in public locations, such as airports, as a quick means of determining whether luggage contains contraband. In United States v. Place, the U.S. Supreme Court explained that the use of drug-detection dogs to sniff luggage in a public location was not a “search” under the Fourth Amendment because of the accuracy and limited intrusiveness of the canine sniff technique. The Place Court likely reached this conclusion because the background understanding of the day was that detection dogs were the ideal sensing tool because, in the rare case of a mistake, the dog’s error was actually a false negative. Therefore, any mistake by a drug-detection dog worked to the benefit of the luggage owner.

Despite recent evidence that drug-detection dogs are inaccurate a surprising percentage of the time, the Court in Illinois v. Caballes extended the warrantless use of the canine sniff technique to a lawfully stopped vehicle. The impact of the Caballes decision has been felt far beyond vehicle sniffs, however. Lower courts have taken the Place and Caballes decisions as a signal that canine sniffs are per se nonsearches and that it is therefore permissible to conduct suspicionless canine sniffs of homes. Without a warrant requirement, or even a suspicion …

Tasering defendant handcuffed behind his back up to eleven times, mostly in the groin, to get him to spit out drugs in his mouth, was excessive force under the Fourth Amendment. Hereford v. State, 2011 Tex. Crim. App. LEXIS 445 (April 6, 2011), affg Hereford v. State, 302 S.W.3d 903 (Tex. App.—Amarillo 2009):

The court of appeals may be seen as having failed to credit testimony that appellant was “combative” through out this incident, but this testimony was also unsupported by the record. Each officer agreed that appellant was not compliant with their orders to spit out the contents of his mouth, yet, each individually confirmed that appellant was not a danger to the officers, the medical staff, or anyone else. Officer Williams commented during direct examination that, even though appellant was handcuffed, he was still a potential threat to the welfare of the medical staff. This testimony was directly contradicted by his own testimony, during the pre-trial suppression hearing and on cross-examination at trial, that appellant was not a threat to anyone present. Corporal Holmes noted that appellant’s legs were not tied down when he was strapped to a bed at UMC, but stated that appellant did not kick or injure anyone. Officer Arp testified that, although appellant’s legs were not strapped down, they were held down while appellant was on the hospital bed. Appellant kicked his feet only when he was strapped to a bed while Officer Arp and the medical staff administered ammonia capsules and additional Taser shots. Other than refusal to open his mouth, the only non-compliant acts mentioned were that appellant did not immediately exit from the back of the police car, moved his head around, tried to push off of the trunk of the police car when his chest and head were being forced down by three officers, and that he moved around and made loud noises. Non-compliance, without more, does not itself deem a suspect “combative” in a use-of-force analysis. The court of appeals was not required to defer to the trial court’s implied finding that appellant was combative when such a finding was not supported by the record.

On DigitalLiberty.net is a letter to the U.S. Senate’s ranking members from several groups urging amendment of ECPA to comply with the Fourth Amendment in the digital age:

Dear Chairman Leahy and Ranking Member Grassley:

As public interest groups dedicated to limited, Constitutional government, we write to urge Congress to extend the Fourth Amendment’s protections to Internet-based “cloud” and mobile location services. Specifically, Congress should amend outdated U.S. laws originally intended to protect citizens against unwarranted law enforcement access to their private information held electronically by third parties. The laws protecting such information, while robust at the time of their enactment, have been eroded by technological change. By closing the resulting gaps in legal protection, Congress can restore Americans’ individual liberties in the digital age and ensure the Internet remains a powerful engine of economic growth, while preserving the tools needed by law enforcement investigations and removing legal uncertainty that may hamper law enforcement’s effectiveness.

Bringing the Fourth Amendment into the Digital Age

Among the chief causes of the American Revolution was widespread outrage at the use of “general warrants” and “writs of assistance” by British officers to conduct searches and seizures without judicial oversight. George Mason’s Virginia Declaration of Rights, adopted mere months before the U.S. Declaration of Independence, set forth the basic warrant requirements for lawful searches that was ultimately enshrined in the Fourth Amendment—which protects our “persons, papers and effects” from such arbitrary invasion by requiring law enforcement to obtain warrants issued by a court upon a showing of probable cause.

In a knock and talk at a motel room, defendant refused entry and attempted to shut the door. The officer stuck his foot in the door and grabbed defendant and pulled him out. The officer had probable cause to believe that defendant was in violation of the Nevada felon registration statute at the time. The consent of the co-occupant was invalid: she was taken from the room in handcuffs and warned of dire consequences for not cooperating while her child was asleep on the bed, and the circumstances were inherently coercive. United States v. Patterson, 2011 U.S. Dist. LEXIS 36827 (D. Nev. February 28, 2011)*:

The validity vel non of Hodges’ consent to the search of the room turns on whether it was induced by police coercion. On this issue the court credits Hodges’ account of the events that evening. In his testimony Det. Knudson denied that Hodges was threatened in any way. Viewing his testimony in a light most favorable to the government, the court finds that he did not affirmatively tell Hodges that unless she signed the consent form, she would lose her baby. Indeed, Hodges herself did not testify that Knudson — or Kwity, for that matter — uttered those words. Hodges did testify credibly, however, that the detectives told her three times she could be in a lot of trouble on account of the drugs found in the room, but that if she cooperated, everything would be all right. The last time they said it was after she pointedly asked whether the detectives were going to take her baby away from her. The court finds that she reasonably interpreted the detectives’ words to mean that unless she signed the consent form, they would arrest her and take her baby.

Fort Smith police work with TV cameras rolling by Dave Hughes in the Arkansas Democrat-Gazatte (sub. req.) today:

A new television program, featuring Fort Smith police officers, will offer viewers around the country a cop’s-eye view of police work.

Police POV, airing April 17 on the Turner Broadcasting System, will show officers in Fort Smith, Cincinnati and Chattanooga, Tenn., as they go about their daily work.

The officers will each wear a small video camera that fits over the ear and that will record events from the officers’ “point of view.”

Turner TV press kit here.

Officers in more cities have cameras on the chest-high microphone of their radios. When the defendant speaks, it is a “statement of the defendant” for discovery purposes. Some of these I am looking forward to seeing in discovery.

Defendant came to the police department to talk about a crime, and he refused consent. When officers said they could get a search warrant, he then consented, and that was not coerced. United States v. Hedrick, 2011 U.S. Dist. LEXIS 36615 (E.D. Mo. March 7, 2011)*:

That the law enforcement officers stated that they could arrest him for his involvement and obtain a search warrant for his house does not render his statements or consent involuntary. See United States v. Bradley, 234 F.3d 363, 366-67 (8th Cir. 2000) (that officers threatened to arrest suspect’s son did not render consent to search involuntary because although “concern for his son may have been a motivating factor,” he had not “acted under duress or undue pressure”); United States v. Severe, 29 F.3d 444, 446 (8th Cir. 1994) (that officers told defendant that if he refused to consent to the search, the officers would obtain a search warrant was “only one factor in the totality of the circumstances inquiry”).

The affidavit for the search warrant had information a year old, but it was not stale considering the operation under investigation was ongoing. Even so, the GFE would save the search warrant. United States v. Estrada, 2010 U.S. Dist. LEXIS 142511 (N.D. Ga. July 30, 2010).*