defendant's situation, after he was arrested and jailed following the first interview, he was placed in a cell without a toilet or a sink, he did not have access to counsel or to any other noncustodial personnel, he was not taken to a bathroom or given any water until the next morning, and he was not provided with any food until some time following the third interview, after more than 24 hours in custody and more than 36 hours since his last meal. Perhaps most significantly, defendant, as far as he could tell, was confined incommunicado. When defendant declared, "I am ready to talk to my lawyer," Detective Martin implied that defendant had to talk to him, and could talk to no one else. Martin did not offer defendant an opportunity to speak with an attorney or even with his mother or his brother, nor was there any evidence suggesting that anyone other than Martin made such an offer. Although defendant's situation might not have reflected "physical punishment" (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [36 L. Ed. 2d 854, 93 S. Ct. 2041]) in the strictest sense of the phrase, its harshness cannot be ignored. Put simply, defendant's situation "could only have increased his feelings of helplessness." (People v. Montano (1991) 226 Cal. App. 3d 914, 939 [277 Cal. Rptr. 327].)The third circumstance that additionally weighs heavily against the voluntariness of defendant's initiation of the second interview, and against the voluntariness of his two subsequent confessions as well, arises from Detective Martin's promise and threat to defendant at the first interview. Promises and threats traditionally have been recognized as corrosive of voluntariness. (See, e.g., Hutto v. Ross, supra, 429 U.S. at p. 30; Malloy v. Hogan, supra, 378 U.S. at p. 7; People v. Benson, supra, 52 Cal.3d at p. 778.) Here we have both a promise and a threat. Each was made by Martin long after he should have brought the first interview to an end upon defendant's repeated invocation of both his right to remain silent an
“In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possible vulnerable subjective state of the person who consents.” Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973). Circumstances the court should consider are the consenting party’s age, intelligence, education, experience and knowledge of the right to withhold consent, as well as evidence of inherently coercive tactics, either in the nature of police questioning or in the environment in which the questioning took place.
She disagrees with the majority’s description of the test for consent–specifically, that it has to be “unequivocal and specific” to be valid. In her view, the Wisconsin case that said that, Gautreaux v. State, 52 Wis. 2d 489, 492-93, 190 N.W.2d 542 (1971), was superseded by Schneckloth v. Bustamonte, 412 U.S. 218 (1973). It’s a little bit unclear what she’s driving at–is the point that valid consent can be equivocal?–but in any case, the other five justices in the majority don’t sign on, so it seems that “unequivocal and specific” is the law in Wisconsin.
In the “Background” section of its opinion, the District Court stated that “[e]ventually, Byrd consented to the search,” Byrd, 2015 U.S. Dist. LEXIS 113281, 2015 WL 5038455, at *2, and depending on the circumstances and scope of such consent, the officers’ search may indeed have been authorized. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (“It is … well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”).
A warrantless search is unreasonable unless an exception to the warrant requirement exists. Henage, 143 Idaho at 660, 152 P.3d at 21 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)). “One such exception allows an officer to conduct a limited self-protective pat down search of a detainee in order to remove any weapons.”
Nothing in that respect has changed: the Court continues regularly to hold that psychological coercion can render a confession involuntary. Arizona v. Fulminante, 499 U.S. 279, 287–88 (1991); Miller v. Fenton, 474 U.S. 104, 109 (1985); Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Op. at 45.Regarding the absence of specific assurance of leniency:Dassey was reassured across two days of interviews that being “honest” would allow him to go “free.”
The voluntary consent of a person authorized to give it removes the need for a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). Police may also rely on a third party’s apparent authority to give consent, so long as that reliance is reasonable.
Ultimately it does not matter whether the driver knew that the State can’t, as a matter of law, prevail at the refusal hearing. A defendant is not entitled “to a broad understanding of all his rights before giving consent under the Fourth Amendment,” he says. ¶19 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973)).As the court of appeals points out, this case mirrors Padley. That makes you wonder why the decision is recommended for publication–it doesn’t break any new ground.
[68]See id.[69]See generally Davis v. United States, 564 U.S. 229 (2011) (describing the exclusionary rule as “a deterrent sanction”).[70]See supra notes 5-7.[71]See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (quoting Boyd v. United States, 116 U. S. 616, 635 (1886)) (discussing systemic negligence of law enforcement and that “illegitimate and unconstitutional practices get their first footing” in their “mildest and least repulsive form[s],” and “by silent approaches and slight deviations” from previously accepted practice).
Fed. Credit Union, 2015 U.S. Dist. LEXIS 165372 (D.Md. Dec. 9, 2015):1) Waiver of the RFPAThe undisputed facts indicate that any requirements under the RFPA of written customer authorization or of obtaining a subpoena with customer notice were effectively waived.It is a fundamental proposition that an individual may waive his or her privacy interests by, for example, consenting, even verbally, to a search by the Government. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (“[A] search authorized by consent is wholly valid.”); United States v. Seidman, 156 F.3d 542, 549 n.10 (4th Cir. 1998) (“Consent has often been recognized as sufficient to waive Fourth Amendment rights.”)