Consent to search does not necessarily include consent to seize. United States v. Chappell, 2011 U.S. Dist. LEXIS 128113 (N.D. Ga. May 24, 2011):<\/p>\n
Upon consideration, the undersigned finds [United States v. Tatman<\/a>, 615 F.Supp.2d 644, 690 (S.D.Ohio. 2008)] persuasive and holds that the waiver of privacy rights under the Fourth Amendment through a consent to search does not act as a separate waiver of possessory rights under the Fourth Amendment. Therefore, a mere consent to search, without more, does not amount to a consent to seize<\/em>. Horton<\/a>, 496 U.S. at 133.<\/p>\n
. . .<\/p>\n
The government contends that the consent authorized the agents to seize all of the items because they were “of potential evidentiary value as to the charges against the Defendant, i.e., the sex trafficking of a child.” [Doc. 36, at 8]. However, to preserve the distinction between possessory and privacy rights, the consent to seize inferred from a consent to search must be no more than what is “inherently necessary to effect that search.” Andracek, 2007 WL 1575355 at *6 (emphasis added) (consent to seize a computer inferred from consent to search the computer does not extend to the removal of the computer from the Defendant’s premises, finding that the off-premises search was not necessary to the search of the hard drive). Applying the Andracek limitation to the Strickland inquiry, the undersigned concludes that the scope of a consent to seize which reasonably may be inferred from a general consent to search is the minimum level of seizure which an objective person would have believed to be necessary to effectuate such a search. Andracek, 2007 WL 1575355 at *6; see Florida v. Jimeno<\/a>, 500 U.S. 248, 252, 111 S.Ct. 1801 (1991) (scope of consent determined by “objective reasonableness” under the circumstances). Otherwise, to hold that a consent to search would authorize the seizure of property beyond what is reasonably necessary to effectuate the search would obliterate the distinction between the privacy and possessory interests protected under the Fourth Amendment.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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