United States v. Fidel Robeles-Ortega, Also Known as Fidel Robles-Ortega, Also Known as Fidel Ortiz-Rolboues , 348 F.3d 679 ( 2003 )

BAUER, Circuit Judge,

dissenting.

I respectfully dissent.

As the majority opinion points out, the essential facts are not in dispute so I will not repeat them except to note that the emphasis seems to be on the illegal entry — which is a given — and the outrage felt by this court. I think we agree, however, that the only issue is whether the consent was given voluntarily considering all the circumstances. The time lapse between one event: the entry, and the other: the consent, is a consideration and was considered by the district court. I cannot say her analysis or her conclusion were in error. Courts have held repeatedly that only seconds of reflections are necessary to form malice even in a murder case. I cannot see why so much more time is necessary for a person to give an informed consent to a search.

There was, it seems to me — and to the trial court — enough of a lapse between the entrance and the consent to call the consent informed. I am reluctant to substitute my judgment for hers, particularly where she accorded the parties three days of hearing, and came to a reasoned conclusion, and produced a thoughtful order that disposed of the issues involved.

I would affirm.