E.D.Ky.: Def consented to search of car; request was “not … sufficiently coercive”

I see cases like this all time time, and it really happens. Clients admit it, and I’ve seen the video. But I’m not going to stop arguing they felt compelled to consent: “So, the question now before the court is whether a reasonable person would have felt free to decline consent. Based upon the standard stated above, the undersigned cannot find that Simms was forced to consent to the search of his vehicle, and the evidence supports a finding that the United States has proven, by clear and positive testimony, that Simms freely gave voluntary consent to search his vehicle. Simms had been pulled over, presented as being very nervous, and failed to provide officers with a rental agreement for the vehicle in his name. In addition, he related traveling to visit family for three days, yet did not even have an overnight bag. He was, finally, in the presence of two officers, but that is the extent of evidence of coercion, and the undersigned does not find it sufficiently coercive to justify a belief that he was unable to refuse to allow a search of his vehicle. Trooper Vanhoose testified that Simms was never told he was not free to leave, he was never told he was being detained. The trooper testified that he and Trooper Mirus just asked him ‘straight up’ if they could search his vehicle, and he provided consent to do so. Therefore, the search of Simms’s vehicle was not in violation of his rights under the Fourth Amendment.” United States v. Simms, 2020 U.S. Dist. LEXIS 245232 (E.D. Ky. Nov. 16, 2020),* adopted, 2020 U.S. Dist. LEXIS 244568 (E.D. Ky. Dec. 30, 2020).*

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