Police came to defendant\u2019s house at 1 a.m. and beat on the door. When he answered, guns were drawn and he was patted down. On the totality, the court finds a nighttime consent less likely to be consensual and more like coercive. United States v. Morrow, 2011 U.S. Dist. LEXIS 84522 (N.D. Ohio August 2, 2011):<\/p>\n
Having carefully considered the totality of the circumstances under which Defendant allegedly consented to the entry of the police, the Court finds that the consent, if given, was not voluntary. The Government has failed to successfully carry its burden that Defendant’s alleged consent was \u201cunequivocal, specific and intelligently given, uncontaminated by any duress or coercion.\u201d United States v. Ivy, 165 F.3d at 402. Defendant was alerted to the presence of the police by banging at the front and then the back doors of his home at shortly after 1:00 a.m. Whether he opened the door or just unlocked it is not dispositive. Officer Donohue’s testimony, however, that several officers entered with their guns drawn and he proceeded to pat down Defendant is quite compelling. Such a nighttime or early morning entry coupled with the show of force evident from the record and testimony that Defendant was not free to go nor, realistically, free to make the police leave his residence are factors more likely to lead to a coerced rather than voluntary consent. Considered together, the evidence presented does not provide the Court confidence that Defendant voluntarily consented to the initial entry of the police.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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