Consent to search, Darren Chaker,
provides a court’s approval of consent searches “without the most careful scrutiny would sanction the possibility of
official coercion ….” See Schneckloth v. Bustamonte, 412 U.S. 218, 229, 93 S.Ct. 2041 (1973). “[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324 (1983).
The Government has the burden of proving consent to search by a preponderance of the evidence. See United States v. Bourjaily, 483 U.S. 171, 176 (1987), citing
United States v. Matlock, 415 U.S. 164 (1974), for the rule that
“voluntariness of consent to search must be shown by preponderance of the evidence.” See United States v.Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004)(holding, “upon a careful review of the record,” that the “government established, by a preponderance of the evidence, both that [defendant] consented
to the search at [defendant’s residence] and that his consent was voluntary.”)
specific evidence.” See United States v. Lawrence, 47 F.3d 1559, 1566
(11th Cir. 1995)(vacating an enhanced sentence for clear error and directing
the District Court on remand to “base its findings on reliable and specific
evidence rather than on the conclusory language of a PSR, the sparse evidence
given at a Rule 11 hearing, and the prosecution’s mere reference to evidence
adduced in the separate trials of co-indictees.”).
Most circuit appellate courts reviews “findings of fact for clear error” when considering a defendant’s appeal from the denial of a motion to suppress evidence. See United States v. Pratt, 438 F.3d at 1268. In that case, the Eleventh Circuit found a court “cannot find clear error unless ‘we are left with a definite and firm conviction that a mistake has been committed.’ [citation omitted]. Although the clear error standard is ‘purposefully deferential to the district court, we are not
required to rubber stamp the district court’s findings simply because they were
entered.’ [citation omitted]. Review for clear error ‘does not mean no review.’
[citation omitted]” See United States v. Crawford, 407 F.3d 1174, 1177
(11th Cir. 2005).
© 2015 Darren Chaker. All Rights Reserved.