After considering all the evidence at the suppression hearing, the court sides with the defense on the consent issue. United States v. Burr, 2007 U.S. Dist. LEXIS 18322 (D. Utah March 13, 2007)*:
Evaluating the voluntariness of Defendant’s consent in this case presents a close question and hinges primarily on the credibility of the witnesses. At the evidentiary hearing, there was a significant amount of contradictory testimony between the agents on one hand and the Defendant and his parents on the other hand. According to the testimony of the arresting agents, this was a routine, casual and consensual encounter–similar to many of the visits that they perform on an almost daily basis. According to the agents, Defendant readily agreed to allow the search. In contrast, Defendant and his parents testified that this was a much more confrontational and coercive encounter, and that Defendant was left with no choice but to acquiesce to the agents’ demands to search the bedroom.
After listening to the testimony, the court finds that the Defendant’s testimony, along with the testimony of his parents, is more credible than that of the agents. The agents’ admission that they believed they were entitled–in fact obliged–to search the room during their visit, along with Mrs. Burr’s and Defendant’s testimony that the agents did not politely request to see the room, but rather “demanded” several times to see the room, leads this court to conclude that the consent was not knowing, intelligent, and voluntary. This conclusion is also supported–but not dependent upon–Wayne Burr’s testimony that, after the search, the agents told him that they did not need a search warrant.
It is undisputed that Defendant was not advised of his right to refuse consent. Indeed, the agents believed that they did not need his consent. In addition, considering the way in which the agents were dressed, the fact that there were two of them present, and the repeated “demands” to see Defendant’s bedroom, the court finds that Defendant did not voluntarily consent to allow them to search his bedroom. Rather, he believed he did not have a choice.
The government has not met its burden in presenting “clear and positive testimony that consent was unequivocal and specific and freely and intelligently given” and that “consent was given without duress or coercion.” United States v. Pena, 143 F.3d 1363, 1366 (10 Cir. 1998)(citations omitted). In evaluating the totality of the circumstances, the court finds that the consent to search the bedroom was not given voluntarily but that it was granted only in submission to coercion and a claim of lawful authority. Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973). Thus, based upon the totality of the circumstances, the court finds that the Defendant did not knowingly, intelligently, and voluntarily give consent to search. Therefore, the court finds that the search of Defendant’s bedroom was unlawful, and the fruits of that search must be suppressed.
Defendant’s warrantless arrest based on his picking up mail with drugs in it was justified. United States v. Muse, 2007 U.S. Dist. LEXIS 18326 (S.D. N.Y. March 16, 2007)*:
In this case, the arresting officer was aware that the two packages had been addressed to different names but the same mailbox number. He observed Jama go into the mail facility and sign for and pick up both packages. These facts, when combined with probable cause to believe that at least one of the packages contained cathinone, were sufficient to establish probable cause for Jama’s arrest.
Generalized motion to suppress failed. United States v. Cruz, 2007 U.S. Dist. LEXIS 18312 (M.D. Ga. March 13, 2007)*:
Although Defendant recited some of the Fourth Amendment standards for determining whether a search and seizure are reasonable, Defendant failed to present any evidence or argument regarding why the evidence in this case should be suppressed. Nevertheless, the Court notes two important factors involved in this case that establish the motion to suppress has no merit: standing and abandonment of the drugs.
Even liberally construing a pro se 2255 petition, it still cannot allege vaguely and conclusorily ineffective assistance on a search issue. Law v. United States, 2007 U.S. Dist. LEXIS 18460 (D. Idaho March 13, 2007).*
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
