I.

THE DISTRICT COURT’S DETERMINATION THAT THE

DEFENDANT’S CONSENT WAS COERCED IS CLEARLY ERRONEOUS BECAUSE
THE COURT FAILED TO (1) CONSIDER THAT THE OFFICERS RESTORED CALM TO
THE DEFENDANT’S HOME BEFORE SHE CONSENTED; (2) CONSIDER THAT THE
DEFENDANT WAS NOT IN CUSTODY; AND (3) USE AN OBJECTIVE TEST FOR
ASCERTAINING THE VOLUNTARINESS OF THE CONSENT.

The district court incorrectly decided that Ms. Somerville’s consent to search was

coerced (R. at 82.) This court reviews for clear error the district court’s factual finding on the

voluntariness of a defendant’s consent. Under this standard, the appellate court must reverse

the district court’s finding when although there is evidence to support it, the reviewing court

on the entire evidence is left with the definite and firm conviction that a mistake has been

committed. The Court of Appeal must reverse the district court’s decision because, when the

court found that “[d]ue to the number of officers, time of day, weapons displayed, and the

officers’ statements about and actions toward Ms. Somerville’s child, the consent was

coerced,” it failed to consider the restoration of calm to the defendant’s house, consider that

the defendant was not detained, and use objective test.

The government complied with the Fourth Amendment’s requirement that searches be

reasonable when it searched Ms. Somerville’s home pursuant to her explicit consent. The

Fourth Amendment provides:

Although warrantless searches of private property are generally presumed to be

unreasonable, the law recognizes certain exceptions when the search is conducted pursuant to

the consent of an authorized person.

When the prosecution relies upon consent to establish the lawfulness of a warrantless

search, the government bears the burden of proving, by the preponderance of the evidence,

that consent was voluntary. The trial court must determine the voluntariness of a defendant’s

consent to a warrantless search of her home by examining the “totality of all the
circumstances. Schneckloth at 227. Two competing concerns must be accommodated in

determining the meaning of a “voluntary” consent-the legitimate need for such searches and

the equally important requirement of assuring the absence of coercion. Id. A search pursuant

to consent may result in considerably less inconvenience for the subject of the search . . .

constitutionally permissible and wholly legitimate aspect of effective police activity.

In the present case, the district court was clearly erroneous because it failed to

consider the restoration of calm was made, the defendant was not in custody, and the

objective test is not used.

A.

B. The Court Failed To Consider That Defendants Was Not In Custody.

Whether or not a consenter was in custody is a significant factor, under the totality of

circumstances, and the district court failed to consider that the defendant was not in custody.

When the claimed consent has been given by a person in custody it is appropriate to be

“particularly sensitive to the heightened possibility for coercion.” “[T]he process of in-custody

interrogation of persons suspected . . . contains inherently compelling pressures which work to

undermine the individual’s will.”

For example, in United States v. Ruiz-Estrella, the court emphasized the

significance of the fact that the consenter was being in custody. 481 F.2d 723, 728 (2d Cir. 1972).

In Ruiz-Estrella, during the course of officers’ questioning of the defendant, who was a

hijacking suspect, the officer took the defendant into a stairwell at the end of the boarding ramp

in the airport, and then closed the door behind him. Id. at 724. The officer asked to search the

defendant’s bag without warning his right to refuse the search. Id. at 727. The court held that the
defendant’s consent was coerced even though he did not experience any other coercive conducts

by the officer because “the environment in which the police questioning took place comes much

closer to a traditional custodial situation.” Id. at 728. (QQQ this sentence make sense) The court

contrasted its case from Schneckloth v. Bustamonte, in which the Supreme Court held that

the consent to search, which was made in a “congenial” roadside encounter, was voluntary. 412

U.S. 218 (1973). The court in Ruiz-Estrella said, “the Supreme Court [in Bustamonte]

stressed the ‘environment’ in which the consent took place was not inherently coercive, being a

far cry from custodial ‘interrogation in some remote station house.’”

Further, when a consenter or co-resident of the consenter was not arrested, our courts

rarely find the consent being coerced only in special circumstances that the conduct of officers is

clearly improper. For example, in Bumper v. North Carolina the Court found the consent to

search was coerced even though the consenter nor her co-resident son was not arrested. 391 U.S.

543 (1968). In Bumper, the officers told the consenter, “I have a search warrant to search your

house,” and the consenter told them to come in. Id. at 546. The Court found the consent was

involuntarily given because the officers failed to show that there was any warrant at all.

In the present case, the district court made the clear error by failure to consider that the

defendant was not in custody. Had the court considered, it would have found that the defendant’s

consent to search was not coerced. First, the defendant was not under arrest before she

consented. (R. at 29:7-10.) The officers did not physically restrained the defendant from re-

entering her residence nor lay hand on her. (R. at 29:12-21.) The questioning took place in the

“congenial” place, the vestibule connected to her house (R. at 5:25), like the place, the

defendant’s automobile, where the investigation was take place in Bustamonte. Second, the

officers’ conduct in the present case was not clearly improper, if at all. The officers “alleged
coercive conducts,” such as questioning at night time (R. at 12:7), the display of holstered guns

(R. at 13:30-44), the usage of profanity (R. at 15:32), and the interaction with the defendant’s

child (R. at 43:12-33) are reasonable conduct by the officers under the circumstances. More over,

unlike the conduct of officers in Bumper, their conduct certainly does not constitute the special

circumstance that the court might find the consent coerced when the defendant was not arrested.

C. The Court Failed To Consider The Officers “Restored Calm” To The

Defendant’s Home.

The court failed to recognize the officers restored the calm in the defendant’s home. If

fearful atmosphere of the initial forcible entry is replaced with relative calm, then the subsequent

consent represent an independent act of one’s free will. For example, in Snype, the person who

consented to search of her house experienced fearful encounter with the officers when heavily

armed officers forcibly entered her house, secured the consenter and her boyfriend in handcuffs,

and raised the possibility of taking the couple into custody while placing her young daughter in

protective care. Id. at 131. Even after the such fearful encounter, the court held that her

subsequent consent was still voluntary because the calm atmosphere of her house was restored.

Id. The court considered following factors in determining the restoration of calm to her house:

the reduction of officers, the removal of the consenter’s boyfriend, the officers’ giving

permission to the consenter to call her sister to come and help with the care of her young child,

and the lapse of time between the officer’s entry into her house and her consent to search, i.e.,

around twenty minutes. Id. at 131-35. The restoration of calm rendered her subsequent consent

voluntary.

In the present case, the defendant’s consent was made after the calm atmosphere was

restored to her house. The defendant’s encounter with the officers was less aggravating than the
encounter the consenter of Snype. Unlike Snype, the officer in the present “knocked” on the

door of the defendant’s house (R. at 15:7) and did not enter the house until her consent. The

defendant’s subsequent consent came after the calm atmosphere was restored like the way the

consenter in Snype’s consent came. First, there was significant reduction in the number of

officers. Four officers encountered with the defendant initially (R. at 12:44), and minutes later,

the three of the four officers left the vestibule. (R. at 25:7-8.) Also, the amount of the lapse of

time between the moment that three officers left to the moment of her consent is about twenty

minutes, like the amount of the lapse of time in Snype. (R. at 24:16 - 25:39.) The calm

atmosphere to the defendant’s house was restored before the defendant’s consent; therefore, the

district court’s failure to consider the restoration of calm to her house is clearly erroneous.

The defendant’s consent to search her home was not reversed. The district court was

clearly erroneous when it failed to use the objective test, consider the fact that the defendant was

not in custody, and consider the restoration of calm was made before her consent. This point

alone, the court correctly denied the motion to suppress the evidence.

II. THE EVIDENCE FOUND IN THE SERACH WOULD HAVE BEEN

DISCOVERED INEVITABLE.
The district court correctly denied the defendant’s request to suppress the evidence

because even if the defendant’s consent to search was coerced, the evidence’s discovery was

inevitable. Although determinations of probable cause are reviewed de novo, Ornelas v.

United States, 517 U.S. 690, 696-99 (1996), a district court’s findings of fact, including an

ultimate finding that a pending warrant application made discovery inevitable, can be reversed

only if clearly erroneous, see United States Cabassa, 62 F.3d 470, 474 (2d Cir. 1995)
(reviewing inevitable discovery for clear error). United States v. Mendez, 315 F.3d 132,

135 (2d Cir. 2002), which held that a de novo standard applies to inevitable discovery, should

not govern this case because it involved a different issue: whether a planned inventory search,

not a pending warrant application, made discovery inevitable. Although the exclusionary rule

disallow admission of evidence that has been discovered by means of constitutional violation, the

inevitable discovery is a well-established exception when the evidence’s discovery was

inevitable. Nix v. Williams, 467 U.S. 431, 444 (1984). Exclusion of evidence that would

inevitably discovered without police misconduct would put the police in a worse position than

they would have been in if no unlawful conduct had transpired, and would fail to take into

account the enormous societal cost of excluding truth in the search for truth in the administration

of justice. Id. at 432 Disincentives to obtaining evidence illegally-including the possibility of

departmental discipline and civil liability-lessen the likelihood that the ultimate or inevitable

discovery exception will promote police misconduct. Id. The prosecution must establish by a

preponderance of evidence that the information ultimately or inevitably discovered by lawful

means. United States v. Whitehorn, 829 F.2d 1225, 1230 (2d Cir. 1987). A court must find,

with a high level of confidence that each of the contingencies of the contested evidence would be

resolved in government’s favor. The contingencies that must be resolved involves “a judge’s

discretionary decision to grant a search warrant [and ] police officer’s discretionary decision to

make an arrest [or search].”

A. The Officers Could Have Obtained The Search Warrant

The officers had probable cause so that the warrant would have issued had the defendant

not consented, and the officers would have searched the defendant’s house pursuant to the

warrant. Probable cause means ‘a fair probability that . . . evidence of a crime will be found.’ The
totality of the circumstances approach is the test of the probable cause determination.

Corroboration by details of an informant’s tip by independent police work is of significant value.

Id. The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis

for concluding that probable cause existed. Id.

Officers have probable cause when they pinpointed the place to be searched, and

presence of criminal activities are revealed through their independent investigation prior to a

illegal search. In United States v. Whitehorn, as a result of the investigation of F.B.I.

agents on whereabouts of defendants, they found the place defendants expected to be harboring.

Once the fugitives were located, the agents knocked and identified themselves as F.B.I. agents,

the agents kicked the door and arrested the defendant. Id. at 1228. Due to the defendant’s prior

history of using explosives, the agents performed the “bomb sweep,” which later deemed to be

illegal. Id. The search resulted in finding of prominent evidence against him. Id. at 1229. In

admitting those two evidence under the doctrine of the inevitable discovery, the court found that

the agents had overwhelming probable cause before the illegal search. Id. at 1231. The agents

pinpointed the apartment to be searched, and discovered the presence of criminal activities

through interviews with neighbors as well as prior investigation. Id. Based on these evidence,

the court denied defendant’s motion to suppress the evidence first detected by the bomb sweep.

Id.

Probable cause is established by an anonymous tip if the corroborated by independent

police work. For example, in Illinois v. Gates, police received an anonymous letter which

included statements that defendants were engaged in selling drugs. The letter detailed that the

defendant would drive their car to Florida, and her husband would fly down in a few days to

drive the car back, and the car would be loaded with drugs. Id. Acting on this tip, police verified
the accuracy of the tip. Id. Then the search warrant for the defendant’s home and automobile

was obtained based on the police’s affidavit setting forth the foregoing facts and a copy of the

anonymous letter. Id. Police subsequently discovered marijuana in defendants’ car trunk and

home. Id. Under the “totality of the circumstances” analysis, the Court held that the police had

probable cause because the facts obtained through the independent investigation of the police at

least suggested that respondents were involved in drug trafficking, and it had been corroborated

in major part by the police officer's efforts. Id. at 214-15. Also, in Alabama v. White, the

Court found probable cause when the anonymous tip was corroborated by independent police

work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make

investigatory stop of defendant’s vehicle. In White, police received an anonymous call. Id. at

327. The tipster stated, “Vanessa White would be leaving 235-C Lynwood Terrace Apartment at a

particular time in a brown Plymouth station wagon with the right taillight lens broken, . . . going

to Dobey’s Motel, . . . cocaine inside a brown attache case.” Id. Police saw the station wagon as

described by the caller and observed the defendant leaving the 235 building, carrying nothing in

her hands. Id. They followed her vehicle as it drove the most direct route to Dobey’s Motel. Id.

Police stopped the vehicle, and upon receiving consent to search, they founded marijuana. Id. In

founding the sufficient probable cause, the Court explained that even if not every detail

mentioned by the tipster was verified, police’s corroboration was sufficient: they verified that a

woman left 235 building and got into the particular vehicle. Id. at 331. Also, the defendant’s

departure from the building was within the time frame predicted by the caller. Id. Further, the

defendant’s destination was significantly corroborated. Id. The Court concluded the independent

corroboration by police of significant aspects of the informer’s prediction imparted some degree

of reliability.
 In contrast, Florida v. J.L., granted the defendant’s motion to suppress the evidence as

the fruit of an unlawful search for the lack of probable cause. After an anonymous caller reported

police that a young black male standing at a particular bus stop and wearing a plaid shirt was

carrying a gun, officers went to the bus stop and saw a black male wearing a plaid shirt. Id. at

268. Apart from the tip, the officers had no reason to suspect any of illegal conduct. Id. One of

the officers frisked the defendant and seized a gun from his pocket. Id. The officers asserted that

they had reasonable suspicion to search the defendant because the tip accurately described the

defendant and identified the location of the defendant. Id. However, the Court decided that an

anonymous tip forms the basis for reasonable suspicion only if it is accompanied by specific

indicia of reliability. Id. at 269. The Court explained that the tipster informed the description of

the defendant, but no knowledge of concealed criminal activity was given.

In the present case, the officers had sufficient probable cause so that the search warrant

could have obtained. First, like the officers in Whitehorn, in which the officers pinpointed the

location of the defendant through their investigation and revealed the presence of the fugitives,

the officers pinpointed the location of the defendant and revealed the criminal activity. They

installed and advertised a telephone line for the express purpose of receiving tips of criminal

activity from people in the community. (R. at 4:26-28.) From the line, the officers received

reliable information about the exact location of where the defendant was growing and selling

marijuana. (R. at 9:20-27.) Also, through their knock and talk investigation (R. at 5:2), they

found the tangible evidence of criminal activities: the end of a field-tested marijuana cigarette

and a large carton that had once contained 20 boxes of Ziploc snack bags, which are commonly

used by drug dealers.

 Second, the officers corroborated the major portion of the anonymous tip so that the

indicia of reliability of the tip was exhibited. For example, like the officers in Gates, who found

the indicia of reliability of the tip from verifying the details of the tip that are not easily

obtainable, such as accuracy of the prediction of future criminal activities, the officers in the

present case found the indicia of reliability of the tip by verifying the details of the tip that are

not easily available, such as occurrence of a gun shot accident involving a male and the address

of the defendant. Also, the reliability of the tip was further strengthened when the officers found

tangible evidence, such as the end of the marijuana cigarette and the carton of Ziploc bags. In

contrast, the indicia of reliability of the tip in the present case is distinguished from that of J.L.,

because in J.L., the tip did not have any hard-to-obtain details, but only with visible attribute and

the location of the defendant, and no other sign of suspicion of criminal act was observed by the

officers. Therefore, under the totality of circumstances, the officers had sufficient probable cause

to obtain the search warrant from the corroboration of the anonymous tip and other tangible

evidence.

B. The Warrant Would Have Issued And The Officers Would Have
Searched The Defendant’s House.

1. The Magistrate Would Have Issued The Search Warrant

The magistrate would have issued the search warrant because the officer had

overwhelming probable cause. The duty of a reviewing court is simply to ensure that the

magistrate had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at

214. Even if the search warrant affidavit had reference to tainted information, the search remains

valid if a court can conclude from the affidavit that probable cause for the search existed without

the tainted information.

 The test of whether or not a magistrate would have issued the warrant is an objective one.

In United States v. Heath, the court remanded the lower court’s decision of suppressing

evidence due to the illegal search, because the lower court failed to determine whether the

officers would have arrested the defendant on the subsequent finding of the evidence. Heath,

455 F.3d at 55. In Heath, after obtaining a warrant to search of the defendant’s house, but

without an arrest warrant, the officers entered and performed the safety sweep. Upon entering,

they saw the co-resident of the defendant and placed him in-lie position until the initial

completion of the safety sweep. Id. Then an officer went into the upstairs bedroom, found the

defendant, and placed him in handcuffs. Id. Then the officer found marijuana hidden behind a

dresser in his bedroom and formally arrested him. Id. Meanwhile, the other officers discovered

bags of crack cocaine on the landing of the stairwell, on the stairwell itself, and at the bottom of

the stairwell. Id. at 56. The arresting officer observed these bags, including the three bags

located at the bottom of the stairwell. Id. The lower court failed to find the origin of the cocaine

at the bottom of the stairwell. Id. The lower court suppressed the evidence because the arrest

pursuant to finding of marijuana in his bedroom was illegal. Id. at 54. The court remanded for

the lower court to find whether or not the officers would have arrested the defendant on the

evidence he found after the illegal arrest.