Opinion

United States v. Nicholas J. McWeeney

  • 454 F.3d 1030
  • 2006 U.S. App. LEXIS 18320
  • 2006 WL 2035329
Court
Court of Appeals for the Ninth Circuit
Filed
Jul 21, 2006
Status
Published
Author
Fletcher
On the bench
Goodwin, Fletcher, Fisher
Cited by
40 cases

concluding that it would be an “unfair and impermissible burden” on an individual’s right to refuse to be searched if the government could use the refusal against them.

How later courts described this case

  • concluding that it would be an “unfair and impermissible burden” on an individual’s right to refuse to be searched if the government could use the refusal against them.
  • explaining that a suspect is free, after initially giving consent to a car search, to delimit or withdraw his 4 consent at anytime
  • holding that law enforcement officers may not 22 “coerce a citizen into believing that he or she had no authority to enforce” the right to 23 withdraw consent
  • holding that law enforcement officers may not "coerce a citizen into believing that he or she had no authority to enforce" the right to withdraw consent

Written by the judges who cited it.

Distinguished

  • Distinguished by State of Arizona v. Francisco L. Encinas Valenzuela, 237 Ariz. 307 (2015)

    He cites McWeeney for this argument but that case is inapplicable.
    Court of Appeals of ArizonaMay 26, 2015Read it

The opinion

B. FLETCHER, Circuit Judge,

dissenting in part:

I concur in the majority opinion in all respects except I dissent from the need for remand to determine whether coercion prevented McWeeney from exercising his right to withdraw his consent. McWeeney *1038 and Lopez were told by uniformed officers to face away from the car so that they could not see the search. When one of them peeked over his shoulder he was told in no uncertain terms to turn back. What more “coercion” was needed to prevent them from determining what was going on? To require the district court to consider a laundry list of factors is nonsensical. Any reasonable person would recognize that two punk kids ordered out of their car, by police officers, told to turn their backs while their car is searched are afraid to disobey authority. Accordingly I dissent from the remand.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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