The officer turned off the audio to his video when he called in information with his password and forgot to turn it back on when he asked for and got consent. He remembered, turned it back on, and reconfirmed the consent, which the court finds credible. The stop continued too long, however, and it became an arrest without probable cause. Ultimately, the court finds that defendant\u2019s consent was invalid and not a product of free will during the stop, and his computer with child pornography was searched. United States v. Padilla, 2011 U.S. Dist. LEXIS 58035 (S.D. Miss. May 24, 2011)*:<\/p>\n
Even where a consent is voluntary, if there has been a preceding constitutional violation, that consent is not valid unless it is also an independent act of free will. Id. at 407. \u201cThe purpose of this inquiry is to determine whether there was a \u2018break in the causal chain\u2019 between the constitutional violation and the consent; that is to say, consent cannot be the product of the illegal detention.\u201d Id. (citing United States v. Santiago, 310 F.3d 336, 343 (5th Cir. 2002)). To determine whether consent was independent, the Court considers: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct. Id.<\/p>\n
Here, the Court finds that all three factors weigh against a finding that the written consent was an act of free will. Padilla was still being illegally detained at the time that he gave the consent and thus there were no intervening circumstances between the constitutional violation and the consent. The first two factors clearly weigh against the Government. United States v. Jones, 234 F.3d 234, 243 (5th Cir. 2000)(noting illegal detention that continued until time of consent meant that the first two factors weighed against consent being independent). Lastly, the Court finds that the initial misconduct here was flagrant, considering the prolonged detention that Padilla endured on the basis of questionable evidence. In sum, the Court finds that the written consent, though voluntary, was the product of the illegal detention and not an independent act of free will. Because Padilla’s consent was not valid, the search of his computer violated the Fourth Amendment and the Motion to Suppress must be granted.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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