{"id":3032,"date":"2009-03-31T07:08:10","date_gmt":"2009-03-31T07:08:10","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-03-31T07:08:10","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3032","title":{"rendered":"M.D. Fla.: Defendant has to be present and have objected to invoke Randolph<\/em>"},"content":{"rendered":"

Defendant’s consent was voluntary even though she was handcuffed. The initial tension of the arrest had dissipated, and the situation was calmer by the time of the consent. United States v. Merritt, 2009 U.S. Dist. LEXIS 24227 (S.D. W.Va. March 24, 2009).*<\/p>\n

USMJ who issued a search warrant hears a Franks<\/a> challenge and concludes that statements were erroneous, but they did not rise to the level of recklessness. Even if the wrong information is excluded, PC remains. United States v. Henry, 2009 U.S. Dist. LEXIS 23627 (E.D. Mo. March 23, 2009):<\/p>\n

Information was being gathered by third parties as in Stevens supra, and relayed to Wicks. If indeed a mistake was made as to the location of the tractor, there is no evidence that it was willful or reckless, but at the most negligent. In addition, the undersigned has observed the demeanor of Deputy Wicks while testifying on the stand, and observed him to be forthcoming and candid in his responses to questions asked by the Defendant’s attorney and the prosecutor. The undersigned concludes that Wicks was a very credible witness, and that Wicks believed that the affidavit was truthful at the time he swore to it, and to this date believes that he saw the tractor at 266 Woods Road. Therefore, the Defendant’s Franks challenge must fail.<\/p><\/blockquote>\n

Defendant’s 2255 challenge fails because his conditional plea omitted search and seizure claims. However, defense counsel did not challenge the search, but it would have failed as a matter of law because defendant, as a passenger in the car, could be detained with it, and he was asked to remain with the car, and then a gun was found abandoned near the car. No Fourth Amendment rights of the defendant were violated, so defense counsel could not be ineffective. Derrick v. United States, 2009 U.S. Dist. LEXIS 23697 (E.D. Mo. March 20, 2009).*<\/p>\n

Defendant had to be present to object to invoke Randolph<\/a>. United States v. Megahed, 2009 U.S. Dist. LEXIS 24441 (M.D. Fla. March 18, 2009)*:<\/p>\n

[T]he defendant’s absence (which was not procured by the agents who obtained Samir Megahed’s consent or by the agents who conducted the search) renders inapplicable the narrow exception to Matlock<\/a> and Rodriguez<\/a> recognized in Georgia v. Randolph<\/a>, 547 U.S. 103, 120 (2006) (holding that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present<\/em> resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident”) (emphasis added); see also Randolph, 547 U.S. at 126 (Breyer, J., concurring) (“The Court’s opinion does not apply where the objector is not present<\/em> ‘and object[ing].’) (emphasis added); ….<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-3032","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3032","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3032"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3032\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3032"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3032"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3032"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}