12-1914-cr
     United States v. Spencer

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of March, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSÉ A. CABRANES,
 9                CHESTER J. STRAUB,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Plaintiff-Appellant,
15
16                    -v.-                                               12-1914-cr
17
18       STACEY T. SPENCER, SR.,
19                Defendant-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        MONICA J. RICHARDS, Assistant
23                                             United States Attorney, for
24                                             William J. Hochul, Jr., United
25                                             States Attorney for the Western
26                                             District of New York, Buffalo,
27                                             New York.
28

                                                  1
 1   FOR APPELLEE:              EDWARD EARL KEY, Law Office of
 2                              Edward Early Key, Buffalo, New
 3                              York.
 4
 5        Appeal from an order of the United States District
 6   Court for the Western District of New York (Skretny, C.J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the order of the district court be
10   AFFIRMED.
11
12        The United States of America appeals from the order of
13   the United States District Court for the Western District of
14   New York (Skretny, C.J.), adopting the report and
15   recommendation of the magistrate (Scott, M.J.), granting
16   Stacey T. Spencer, Sr.’s motion to suppress evidence
17   discovered pursuant to a search of his car. We assume the
18   parties’ familiarity with the underlying facts, the
19   procedural history, and the issues presented for review.
20
21        In reviewing a district court’s grant of a motion to
22   suppress, we review the factual findings for clear error,
23   viewing the facts in the light most favorable to the
24   prevailing party, and we review legal conclusions de novo.
25   United States v. Murphy, 

, 188-89 (2d Cir.
26   2012).
27
28        When a search is conducted pursuant to a subject’s
29   purported consent, the government must “demonstrate that the
30   consent was in fact voluntarily given, and not the result of
31   duress or coercion, express or implied.” Schneckloth v.
32   Bustamonte, 

, 248-49 (1973). “The standard for
33   measuring the scope of a suspect’s consent under the Fourth
34   Amendment is that of ‘objective’ reasonableness--what would
35   the typical reasonable person have understood by the
36   exchange between the officer and the suspect?” Florida v.
37   Jimeno, 

, 251 (1991). Here, the magistrate
38   judge made a finding (which the district court adopted) that
39   Spencer “ambiguously consented to search a vehicle
40   he . . . did not possess, a truck,” or that Spencer “was
41   making a glib statement not intended to consent to
42   anything.” J.A. 188. Those findings are not clearly
43   erroneous. We therefore cannot hold that Spencer consented
44   to the search at issue, and the government has declined to
45   press on appeal any argument premised on abandonment.
46


                                  2
1        For the foregoing reasons, and finding no merit in the
2   government’s other arguments, we hereby AFFIRM the order of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8
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