Motion to Suppress – Consent to Search – Residual Clause

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Criminal

7^th Circuit Court of Appeals

Officials: EASTERBROOK, MANION, and SYKES, Circuit Judges.

Motion to Suppress – Consent to Search – Residual Clause

No. 13-1441 USA v. Juan Gonzalez Ruiz

Appellants failure to explicitly deny consent to search, and failure to object once the search began equated to consent. Additionally, in light of Johnson v. United States, imposing an increased sentence under the residual clause violates due process.

“We don’t see any error in the district court’s findings on consent. Gonzalez-Ruiz’s argument for suppression rested largely on Vasquez’s testimony—more specifically, her claim that when Gonzalez-Ruiz said “I guess,” he was really responding to her question about picking him up and not to Laha’s request for permission to search. But Vasquez wasn’t present at the scene, and the officers who were there testified that his verbal response “I guess” came in reply to Laha’s request for consent to search and was accompanied by a wave of the hand and a nod. The district court accepted the officers’ testimony as credible, and that determination gets substantial deference. United States v. Williams, 209 F.3d 940, 943 (7th Cir. 2000) (explaining that the reviewing court’s deference to credibility findings is “near absolute”). The district court also relied on the video and audio recordings, which support the officers’ testimony. Gonzalez-Ruiz does not question the contents of the recordings or the court’s interpretation of them.”

Affirmed.

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Attorney Derek A. Hawkins is the managing attorney at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.