CA1: Asking when you can get your car back is not revocation of consent; here it took over 21 days to search defendant’s car

Defendant’s car was seized as evidence of what he claimed was a carjacking where guns were stolen out of his car. His wife was murdered around that time. The government believed that the carjacking was a ruse to coverup loss of the gun used in the murder. The government had the car by consent and searched multiple times. Defendant contended that he revoked his consent but he never explicitly said he did. He just asked when he was getting the car back. There is no specific time when the search has to be done; it just has to be reasonable. Defendant was tried and convicted of the murder and sentenced to 109 years by the Commonwealth of Puerto Rico. Then the feds indicted him for false statements about the carjacking. P&A in the federal case was right after the murder sentencing. The court reverses on denial of a change of venue because virtually all the jurors were aware of the murder conviction. The denial of the motion to suppress is affirmed, and the court questions the point of trying him for a 1001 violation while he’s doing a 109 year sentence. United States v. Casellas-Toro, 2015 U.S. App. LEXIS 21199 (1st Cir. Dec. 7, 2015):

Casellas gave written consent to search his car on June 25, without any time limit or other restriction. The FBI first searched the car on July 16. In the intervening three weeks, Casellas called the FBI four times. His first call, Casellas asked if the FBI could return the car because insurance adjusters needed to inspect it. The next three calls, Casellas asked, “Have you done the search, can I have my car back?” After the first search, the FBI believed that any bullets fired at Casellas may be lodged behind the dashboard or in hard-to-reach places. On August 6, it obtained a search warrant for the car — still in police custody — and executed a second search.

At trial, Casellas moved to suppress evidence from both searches. The district court denied his motion, finding that the FBI conducted the search within a reasonable time, that Casellas’s calls “reaffirmed” his consent, and that there was probable cause for the warrant-authorized search.

First, there is no precise timeframe to complete a warrantless search. Cf. Fed. R. Crim. P. 41(e)(2)(A)(i) (stating search warrant must command the officer “execute the warrant within a specified time no longer than 14 days”). The car remained in custody, unsearched, for 21 days. The government claimed it “could not search the vehicle any sooner because other matters had precedence.” The district court found that a reasonable person “would have known such an endeavor would not be conducted momentarily, but would take some time, especially when the alleged assailants of the car and the defendant were at large.” While 21 days approaches the outer limit of a reasonable time to complete a consent search, the district court did not clearly err in finding the officers “searched the car within a reasonable time for a carjacking.”

Next, a typical person would understand Casellas’s calls as inquiries about when the search would be complete. Although Casellas asked for his car back, he never told the agents not to search it. He never said his previous consent was no longer valid. There is no evidence that Casellas’s consent was involuntary or that he simply acquiesced to legal authority. See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (finding consent was not voluntary when person acquiesced in a search after an officer asserted having a search warrant).

Casellas argues that the agents could not reasonably believe his consent was still valid when they conducted the search two days after he was a suspect in his wife’s murder. Casellas, however, does not dispute that the government scheduled the search before the murder and executed it as planned. …