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D.N.J.: Government failed to show consent

By John Wesley Hall, Jr.

Court finds defendant's consent was not voluntary, faulting in part the government's failure to develop on cross-examination things that supported voluntariness. Since the government carried the burden of consent, it failed. United States v. Brown, 2009 U.S. Dist. LEXIS 121514 (D. N.J. December 30, 2009)*: After balancing the testimony of Ms. Ford and Detective Santiago and consideration of the submissions and evidence, this Court finds that the totality of the circumstances supports a finding that Ms. Ford's consent was not voluntary. The Court finds the following facts significant: the time of the incident; the number and types of officers involved; the fact that the officers had a specific target prior to coming to the apartment yet had no plan for a method of further investigation that did not involve obtaining access to the apartment; the fact that the officers reported that the gun was ultimately found in plain view even though they allegedly conducted a visual sweep of the kitchen earlier and did not find the gun; the threat of DYFS involvement; and the way the form was given to Ms...continue to full post

Full post as published by Fourth Amendment on January 05, 2010 (boomark / email).