{"id":1413,"date":"2007-11-01T09:43:44","date_gmt":"2007-10-04T10:24:51","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-10-04T10:24:51","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1413","title":{"rendered":"Denial of consent for Randolph<\/em> does not have to occur at the house"},"content":{"rendered":"

Consent denial binding under Randolph<\/em> does not have to occur at the threshold; it can be elsewhere. Inevitable discovery also rejected on these facts. United States v. Weston, 65 M.J. 774 (N.-M. Ct. App. 2007):<\/p>\n

The appellant’s facts fall in the middle ground between Matlock<\/em><\/a> and Randolph<\/em><\/a>–neither co-tenant was present at the residence but both were asked for consent to search, resulting in competing consents. Applying the Randolph<\/em> analysis here, based on shared social expectations and common understanding of co-tenant rights and relationships, and weighing and balancing the competing interests, we conclude that the consent colloquy in this case, held away from the residential front door and resulting in competing consents, is constitutionally no different than one held at the physical residential front door.<\/p>\n

. . .<\/p>\n

Applying the law of inevitable discovery to the facts in this case leads us to the conclusion that the Government’s evidence establishes no more than that the seized evidence “could” have been discovered if an alternative procedure had been implemented as part of the investigation. Only speculation can get the Government beyond what “could” have been done and what results “might” have been achieved. Because we must focus on the “demonstrated historical facts capable of ready verification or impeachment,” without speculation, Nix<\/em><\/a>, 467 U.S. at 444 n.5, we conclude that the Government did not carry its burden of establishing inevitable discovery by a preponderance of the evidence. Accordingly, we find that the military judge abused his discretion in concluding that the seized evidence would have been inevitably discovered merely because CID had a legal basis upon which search authorization could be sought–probable cause.<\/p><\/blockquote>\n

Officers reasonably believed that consenter used the premises as a secondary residence and could consent. United States v. Silva, 2007 U.S. Dist. LEXIS 73241 (D. Or. September 27, 2007):<\/p>\n

The officers’ observation of Lowe led them to believe she had just showered at the 502 residence, and she did not disclaim control over the residence. Further, it appears that she may have actual control over the residence as she stated she comes over to the residence every few weeks to work. It is objectively reasonable to conclude Lowe had authority to consent to search of the residence. The officers reasonably believed that although it was not her primary residence, it was a secondary residence shared with defendant when Lowe came to Medford to work as a care giver or housekeeper. Thus, the issue is whether Lowe provided voluntary consent.<\/p><\/blockquote>\n

Comment:<\/em> This one is really thin.<\/p>\n

Plaintiff stated a claim for relief for ATF agents allegedly trashing his house and stealing $2000 during search because it is a question of reasonableness of search. Springer v. Horn, 2007 U.S. Dist. LEXIS 73399 (N.D. Okla. October 1, 2007).*<\/p>\n

Qualified immunity denied two officers who were accused of arresting plaintiffs for the content of their speech. “Little precedent” was not enough reason for qualified immunity. McCabe v. Macaulay, 2007 U.S. Dist. LEXIS 73385 (N.D. Iowa October 1, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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