Category Archives: Consent

OH2: Owner of real property has no power to consent to search of visitor’s or co-tenant’s property

The owner of real property had no authority to consent to the search of a visitor’s backpack. State v. Holland, 2019-Ohio-2351, 2019 Ohio App. LEXIS 2456 (2d Dist. June 14, 2019). The owner of real property could not consent to … Continue reading

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KY: State’s comment on refusal to consent to DUI test was prejudicial and error

Defendant was convicted of DWI 4th by a jury. The evidence in the case was slim, and he had witnesses with him that night who testified he never drank any alcohol. The state’s comment on his refusal to take a … Continue reading

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E.D.N.Y.: Assuming pawn shops are closely regulated businesses, ptfs stated a claim under § 1983 for arbitrary and unreasonable enforcement

Assuming pawn shops are closely regulated business, in this § 1983 case against arbitrary and unreasonable administrative searches under Burger, plaintiffs survive summary judgment. There is a police memo attempting to limit the exercise of police discretion, but the city … Continue reading

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W.D.La.: Def didn’t have a REP in a friend’s carport visible from the street when police saw him

Defendant was on the carport of a house, and he was mistaken for a wanted person. It was not unconstitutional for officers to tell him to put his hands on his head for safety reasons. Officers came in and he … Continue reading

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CA6: Officer’s looking in def’s cigarette box while asking for consent didn’t invalidate consent

On the totality, defendant voluntarily consented to the search of her home. There were officers there with body cameras, but the discussion about consent wasn’t captured. Other officers were looking through the house [maybe a protective sweep]. One officer, apparently … Continue reading

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W.D.Mo.: Def’s consent under a partial misleading threat as to possible sentence was still voluntary

Defendant still consented in the face of the threat of a 20 year sentence, which was partly misleading under the Sentencing Guidelines. The search of the buildings, vehicle, and cell phone was reasonably within the scope of his consent. There … Continue reading

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N.D.Ohio: Def’s saying to CI he had heroin at home was nexus

Probable cause was shown for defendant’s house when he said to the CI that he didn’t have heroin on him, but at home. United States v. Novak, 2019 U.S. Dist. LEXIS 92445 (N.D. Ohio June 3, 2019).* Officers had probable … Continue reading

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S.D.Ohio: A federal-state joint task force isn’t required to use a Rule 41 search warrant

A federal-state joint task force isn’t required to use a Rule 41 search warrant. United States v. Williams, 2019 U.S. Dist. LEXIS 89133 (S.D. Ohio May 29, 2019). “Defendant bears the burden of showing beyond mere speculation that the disclosure … Continue reading

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S.D.Tex.: Giving the password for a cell phone search shows consent

“After considering the totality of the circumstances [in great detail], the court finds that Gallegos’s consent to search his car and the two cell phones was freely and voluntarily given, at least with regard to a manual search on the … Continue reading

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OH11: Pre-Carpenter CSLI was lawfully obtained in good faith

Defendant’s cell tower location information was obtained by subpoena before Carpenter. The good faith exception means it won’t be excluded. State v. Burke, 2019-Ohio-1951, 2019 Ohio App. LEXIS 2021 (11th Dist. May 20, 2019). Defense counsel wasn’t ineffective for withdrawing … Continue reading

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E.D.Mich.: “open the motherfucking door or I’m going to tear it down” showed a lack of consent

Plaintiff overcame defendants’ motion for summary judgment in his Fourth Amendment § 1983 case on consent and exigent circumstances for a warrantless entry. As to consent, “open the motherfucking door or I’m going to tear it down” showed a lack … Continue reading

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CA11: Def’s attempt to limit the scope of his consent search shows voluntariness

“Here, Knight knew that he had a firearm, ammunition, and drugs that he shouldn’t have. And his answer—telling the detective that he would consent to a search if she overlooked these items—was unconstrained by the detective’s question. Indeed, a simple … Continue reading

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