Category Archives: Consent

W.D.Ky.: How def answered other questions during his stop was pertinent to the voluntariness of his later consent

How defendant answered other questions about his paperwork and where he was going was important to show that he understood when asked for consent on the totality of circumstances. United States v. Reyes-Martinez, 2020 U.S. Dist. LEXIS 217510 (W.D. Ky. … Continue reading

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KS: GFE applies to blood draw before court held it unconstitutional

“Applying State v. Perkins, 310 Kan. 764, 449 P.3d 756 (2019), to the circumstances of this case, the good-faith exception to the exclusionary rule applies and allowed the district court to consider the results of a blood test for blood … Continue reading

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W.D.Ky.: “The Sixth Circuit has long held that a police officer does not violate the Fourth Amendment by asking a driver questions after the initial traffic stop has ended.”

“The Sixth Circuit has long held that a police officer does not violate the Fourth Amendment by asking a driver questions after the initial traffic stop has ended. United States v. Erwin, 155 F.3d 818, 823 (6th Cir. 1998) (en … Continue reading

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E.D.Tenn.: Issue preclusion applies in criminal cases but state’s dismissal of criminal case after motion to suppress doesn’t preclude feds

Issue preclusion applies in criminal cases, too, and the state’s dismissal of a case in the face of a successful motion to suppress doesn’t preclude the federal government from prosecuting afterward. This is a recognition of dual sovereignty. United States … Continue reading

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KS: Conduct can show consent

Nonverbal conduct can show consent. Here, defendant swept his arm in front of him suggesting only “come in.” State v. Daino, 2020 Kan. LEXIS 256 (Nov. 13, 2020). Defendant’s limited association with drug premises under surveillance wasn’t enough to make … Continue reading

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OH5: Failure to preserve search issue by conditional plea that would lose on merits wasn’t IAC

Defense counsel wasn’t ineffective for not making sure defendant had a conditional plea to preserve his search issue because the appeal would fail. State v. Smith, 2020-Ohio-5241, 2020 Ohio App. LEXIS 4117 (5th Dist. Nov. 6, 2020). “Here, it is … Continue reading

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TX13: Legibility of issuing magistrate’s signature on SW is subject to GFE

The legibility of the signature of the issuing magistrate for a search warrant is an issue subject to the good faith exception. This court first held the illegibility was reason to suppress, but the Court of Criminal Appeals reversed. State … Continue reading

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S.D.N.Y.: Householder had common authority over def’s room to at least enter

A pair of shoes in plain view in defendant’s room in somebody else’s house were validly seized. The householder had sufficient common authority to at least consent to enter the room. It was not defendant’s primary residence. The officer’s reliance … Continue reading

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W.D.Ky.: When there is PC and the automobile exception applies, the 4A doesn’t require a drug dog be used

The officer had probable cause on the totality for a vehicle search under the automobile exception. It wasn’t required that the drug dog that was there be used, too. United States v. Moralez, 2020 U.S. Dist. LEXIS 206109 (W.D. Ky. … Continue reading

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CA8: If officers “lingered” during protective sweep, nothing else was found as a result

Defendant complained that the officers “lingered” during the protective sweep. Even if they did, nothing else was found as a result. United States v. Crutchfield, 2020 U.S. App. LEXIS 34446 (8th Cir. Nov. 2, 2020). The driver of the car … Continue reading

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N.D.Ill.: Def had standing to challenge search of a garage of another he was using and had exclusive control over at the time

“Perez has provided enough evidence to show that, at the time of the search, he had control over the Dakin garage and the ability to exclude others from it. He was storing materials there, there was no one else on … Continue reading

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CA6: Def consented to expanding breadth of SW because it was in his interest

Police had a search warrant for defendant’s property with marijuana grow operation, but the warrant didn’t cover outbuildings [usually they don’t even have to to cover them]. Here, defendant consented to the breadth of the search, and it was voluntary … Continue reading

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D.S.C.: Renter of hotel room had authority to consent to search of room but not her partner’s safe he brought to room

The renter of a hotel room has apparent authority to consent to its search. She did not, however, have either actual or apparent authority to consent to his safe in the room. United States v. Jaqu, 2020 U.S. Dist. LEXIS … Continue reading

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D.S.C.: Going from and back to house after drug deals showed nexus

Defendant’s going from and back to his house after drug deals showed nexus to the house for a search warrant. United States v. Jaqu, 2020 U.S. Dist. LEXIS 183603 (D.S.C. Oct. 5, 2020). Plaintiff’s claim that he should have been … Continue reading

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CA5: Vehicle in hit-and-run could be seized as “instrumentality of crime”

Plaintiff’s car could be seized on an apartment building parking lot as an “instrumentality of crime” when it had been involved in a hit-and-run. (Neither party cites what the court thinks is a case in point, which it follows.) Rountree … Continue reading

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OH11: Def’s admission he was wearing same shoes as the day of the murder was plain view

Defendant’s admission at his police interview that he was wearing the same shoes as the time of the murder justified seizure of the shoes as plain view. State v. Thomas, 2020-Ohio-4635, 2020 Ohio App. LEXIS 3482 (11th Dist. Sept. 28, … Continue reading

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