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

11/20/09

Permalink 06:19:44 pm, by fourth, 511 words, 166 views   English (US)
Categories: General

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).*

Pingbacks:

No Pingbacks for this post yet...

FourthAmendment.com

Notes on Use

September 2010
Sun Mon Tue Wed Thu Fri Sat
<< <     
      1 2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 29 30    

Search

© 2003-10
Online since Feb. 24, 2003

To search Search and Seizure on Lexis.com $
Contact / About

 www.johnwesleyhall.com
 www.LawofCriminalDefense.com

Fourth Amendment cases,
citations, and links
[New]

Latest Slip Opinions:
U.S. Supreme Court
(Home)
Federal Appellate Courts
  First Circuit
  Second Circuit
  Third Circuit
  Fourth Circuit
  Fifth Circuit
  Sixth Circuit
  Seventh Circuit
  Eighth Circuit
  Ninth Circuit
  Tenth Circuit
  Eleventh Circuit
  D.C. Circuit
  Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions

Most recent SCOTUS cases:
2010-11 Term:
  None yet

2009-10 Term:
  Michigan v. Fisher, 130 S. Ct. 546, 175 L. Ed. 2d 410, decided Dec. 7 (per curiam) (ScotusWiki)
  City of Ontario v. Quon, 130 S.Ct. 2619, 177 L. Ed. 2d 216, decided June 17 (ScotusWiki)


2008-09 Term:
  Herring v. United States, 129 S. Ct. 695, 172 L.Ed.2d 496, decided Jan. 13 (ScotusWiki)
  Pearson v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565, decided Jan. 21 (ScotusWiki)
  Arizona v. Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694, decided Jan. 26 (ScotusWiki)
  Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, decided April 21 (ScotusWiki)
  Safford Unified School District #1 v. Redding, 129 S. Ct. 2633, 174 L. Ed. 2d 354, decided June 25 (ScotusWiki)


Research Links:
  Supreme Court:
  SCOTUSBlog
  SCOTUSWiki
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  DOJ Computer Search Manual
  USSS computer search website


  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé LePew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)

XML Feeds

What is RSS?

Who's Online?

  • Guest Users: 32

powered by
b2evolution