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United States v. Funderburk

February 22, 2007

UNITED STATES OF AMERICA
v.
THOMAS PATRICK FUNDERBURK



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER

Pending is Defendant's motion to reconsider the denial of his motion to suppress. (Docket # 23). On September 13, 2006 a suppression hearing was conducted. Following the presentation of evidence and testimony of witnesses, the Court denied Defendant's motion to suppress. Defendant asks the Court to reconsider its ruling in light of United States v. Lakoskey, 462 F. 3d 965 (8th Cir. 2006). The Court finds Lakoskey factually distinguishable from this case.

In Lakoskey, there was no evidence in the record of implied or express consent to enter the defendant's home. In this case evidence was presented that the Defendant advised the officer that he had a BB gun in his residence and that the officer could go with him to get it. After retrieving the BB gun the officer asked the Defendant if there were any other weapons. The Defendant denied that there were any and told the officer he could search the apartment. Because the police radio would not work in the apartment, the men stepped outside while the Defendant's criminal history was run. The officer, the defendant and another officer reentered the apartment where the officer again asked if there were any other weapons and again the defendant answered "no" but told the officers they could search the apartment. After discovering contraband, the Defendant admitted to other contraband. The officers searched places where weapons could be found and the Defendant accompanied them. After drug and drug paraphernalia were found the Defendant was placed under arrest. A firearm and ammunition were also found. The Defendant was helpful during the search and signed a consent to search form after he was taken to the police station.

Viewing the evidence in its totality, the government has shown by a preponderance of the evidence that the Defendant gave voluntary consent to the search of the apartment. Accordingly, the Defendant's motion for reconsideration is denied.

IT IS SO ORDERED this 22nd day of February, 2007.

20070222

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