ICE use of a ruse photograph to get permission to enter home to look for the person in the ruse when they are really looking for somebody they hope will be there is not free consent. United States v. Hernandez-Juarez, 2009 U.S. Dist. LEXIS 22031 (W.D. Tex. March 16, 2009):<\/p>\n
Although this case does not deal with the use of police deception to the degree recited in Montes-Reyes, the Government has not met its burden of establishing that it secured Mrs. Hernandez’s consent voluntarily. Viewing the totality of all the circumstances, the ICE agents entered the most private of spaces, a home, without a warrant and with only a hunch that the person they were looking for would be inside. The ICE agents used a ruse upon a non-English speaking alien to obtain entry. The typical reasonable person would have understood that the exchange between the agent and Mrs. Hernandez would have amounted at most to allowing a search of the premises for the man in the ruse photograph. The questioning of a female American citizen with a nursing infant indicates that the agents used their fraudulent entry for the purposes of a general roundup once they realized that Junior was not in the premises.<\/p>\n
The Court finds that voluntary consent was not given by Mrs. Hernandez. In the alternative, assuming consent was given, the consent was limited to a search for the unidentified man in the ruse photograph. See U.S. v. Parson, — F. Supp.2d –, 2009 WL 482243 (W.D. Pa. 2009) (agents who during course of child pornography investigation obtained consent to search residence by misrepresenting that defendant was possible victim of identity theft, scope of resultant search was limited to information relevant to investigation into identity theft); U.S. v. Pantoja-Ramirez, 2007 WL 4438977 (D. Idaho 2007) (scope of the search must not exceed the scope of the consent).<\/p><\/blockquote>\n
Seizure of an e-mail address from defendant’s wallet during a search incident was an issue that did not need to be even reached in this case because of the slight contribution to the evidence in the case as a whole, it was harmless beyond a reasonable doubt. United States v. Caramanis, 319 Fed. Appx. 647 (9th Cir. 2009) (unpublished).*<\/p>\n
“Though an officer may question passengers and run a background check, he may not do so merely to delay the stop,” and that required reasonable suspicion. Here, the officer had it. United States v. Marquez-Diaz, 2009 U.S. App. LEXIS 5641 (10th Cir. March 18, 2009) (unpublished), opinion on rehearing 325 Fed. Appx. 637 (10th Cir. 2009).*<\/p>\n
The officer who drafted the search warrant was not one of the original investigating officers, so there were negligent mistakes in the drafting that did not amount to a Franks<\/a> violation. “However, even after excising the false statements from the affidavit, this Court finds that probable cause still exists in the search warrant.” United States v. Ross, 2009 U.S. Dist. LEXIS 21869 (N.D. W.Va. March 16, 2009).*<\/p>\n","protected":false},"excerpt":{"rendered":"
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