Home -> Law Blog Directory -> Criminal Law Blogs -> Fourth Amendment

Criminal Law

: Fourth Amendment

N.D.Cal.: Officer's demanding consent or be arrested was without reasonable suspicion, so it is suppressed

By John Wesley Hall, Jr.

The officer had a hunch there was contraband in defendant’s car, and he told her to turn it over under threat of arrest. This was not consent. United States v. Darling, 2010 U.S. Dist. LEXIS 81658 (N.D. Cal. July 14, 2010)*: Defendant handed the putative contraband over to Ranger Jay only after he threatened arrest (as opposed to a citation) if she did not. Consent to a search is not voluntary when made under a threat of arrest. The Ninth Circuit has observed that even if an arrest had not yet been made, "consent obtained under threat of subjecting [Defendant] to such an arrest cannot be said to be voluntary." United States v. Ocheltree, 622 F.2d 992, 994 (9th Cir. 1980); United States v. Soriano, 361 F.3d 494, 602 (9th Cir. 2004) (factors in assessing voluntariness of consent include whether defendant was in custody [see discussion below regarding arrest], whether Miranda warnings were given, and whether defendant was notified that she had a right not to consent)...continue to full post

Full post as published by Fourth Amendment on August 14, 2010 (boomark / email).