N.D.Ga.: Officer simply testifying “he consented” isn’t enough; court finds it unproved on this record

The court finds discrepancies in the officer’s version of how defendant allegedly consented to a search of his apartment. The AUSA simply asking “did he consent” doesn’t show voluntariness. What else happened? Nothing is explained, and the court refuses to find it voluntary. United States v. Franco-Felix, 2013 U.S. Dist. LEXIS 6489 (D. N.J. January 16, 2013)*:

Here, Officer Valentin has not testified about what was said by Mr. Franco-Felix beyond short responses to the questions of where he lived and was coming from and one-word assents to the critical question of consent to search the apartment. In particular, Officer Valentin testified that he asked Mr. Franco-Felix if they could search his apartment to see if he had any more throw pillows. He claims that Mr. Franco-Felix simply said yes to this request without asking a single question, despite the fact that he was on his way to work at the time and the apartment was several miles away, in the opposite direction of his place of employment. The Court finds this implausible and notes that Officer Valentin’s testimony is directly contradicted by that of Mr. Franco-Felix. In any event, Mr. Franco-Felix is not college-educated and does not speak English and the Court is not convinced that he understood what he was being asked. Put another way, what Mr. Franco-Felix did and how he appeared do not square with that to which he purportedly consented.