Category Archives: Consent

TX5: Consent to a blood draw is also consent to its testing

Consent to a blood draw is also consent to its testing. Schulz v. State, 2021 Tex. App. LEXIS 7748 (Tex. App. – Dallas Sept. 21, 2021). “Citizens have long-cherished constitutional rights which deserve our protection. Law enforcement officers have difficult … Continue reading

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NE: Continuing stop past end of mission of stop was without consent

Once the mission of the traffic stop should have ended, the officer continued questioning and sought consent. The consent was not voluntary. State v. Thompson, 30 Neb. App. 135, 2021 Neb. App. LEXIS 223 (Sept. 14, 2021). Touching the hood … Continue reading

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NE: Consent during unreasonable extension of stop not voluntary

The traffic stop was reasonable, but it was unreasonably extended. Defendant’s consent during that period was not attenuated. State v. Thompson, 30 Neb.App. 135 (Sept. 14, 2021):

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OH2: Old arrest for weapons charge made patdown after jaywalking stop in high crime area reasonable

Jaywalking stop in a high crime drug area led to officers finding about years’ old prior arrest for weapons. It was not unreasonable to pat defendant down. There admittedly was no other suggestion of criminality. State v. Allen, 2021-Ohio-3047 (2d … Continue reading

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MO: SW for cell phone at def’s house wasn’t properly executed on his phone at police station

This cell phone search warrant was for a black Samsung in a black case at defendant’s address. It was executed at the police department, not defendant’s house. The trial court properly suppressed and properly held the good faith exception did … Continue reading

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ID: Where state constitution requires arrest warrant for completed misdemeanors, it was sufficient there was a reasonable belief officer was arresting for a completed felony

While an officer cannot arrest for a completed misdemeanor without an arrest warrant under the state constitution, the officer reasonably believed here that it could be a felony. SCOTUS’s recent opinion on the community caretaking function in Caniglia v. Strom … Continue reading

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D.N.J.: Review in a motion to suppress is not de novo

The affidavit for search warrant was based on probable cause. Review in a motion to suppress is not de novo. United States v. Harper, 2021 U.S. Dist. LEXIS 162543 (D.N.J. Aug. 26, 2021). Defendant was stopped with reasonable suspicion, and … Continue reading

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CA11: There was justification for ptf’s stop, so pretext question doesn’t get to jury

“The plaintiffs contend that the record contains evidence that could lead a jury to conclude that Officer Benton merely used the tag violation as a pretext for an otherwise unlawful stop. But Officer Benton’s subjective purpose for conducting the traffic … Continue reading

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M.D.La.: Evidentiary objection to product of search isn’t addressed in a suppression motion

Defendant’s argument is really an evidentiary objection, not a ground to suppress. Suppression is denied. United States v. Sterling, 2021 U.S. Dist. LEXIS 160728 (M.D.La. Aug. 24, 2021). “Here, the credited testimony of all three officers is that Deputy Lowe … Continue reading

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D.Nev.: Use of cell site simulator to track another’s phone leading to def was reasonable

The government’s use of a cell site simulator to track another person’s cell phone didn’t infringe on defendant’s rights. United States v. Goldsby, 2021 U.S. Dist. LEXIS 160651 (D.Nev. Aug. 25, 2021). The court order (six years pre-Carpenter) showed probable … Continue reading

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IL: State showed reasonable belief in common authority for consent

The state established reasonable belief in common authority of defendant’s wife over his micro-SD card where there was child pornography. To rebut the state’s consent case, defendant would have to show that she actually had limited authority over the card, … Continue reading

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D.N.J.: Dashcam showed no RS for traffic stop

The court having reviewed the dashcam, the officer lacked reasonable suspicion for a traffic stop. The government’s alternative argument that there was generalized reasonable suspicion of drug dealing isn’t timely. On the merits, it still is inadequate. United States v. … Continue reading

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OH1: Telling def to keep his hands out of his pockets and then put them on hood when he wouldn’t didn’t taint later consent

During a stop, defendant was told to keep his hands out of his pockets, but he didn’t and he was fidgeting and putting his hands in and out. Telling him to put his hands on the hood after all that … Continue reading

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TX9: Court clerk can swear officer for SW application

The affidavit for search warrant does not have to be sworn to before the issuing magistrate under Texas law. A clerk will do. Fender v. State, 2021 Tex. App. LEXIS 6605 (Tex. App. – Beaumont Aug. 9, 2021). No reasonable … Continue reading

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D.Conn.: Not reasonable here to handcuff plaintiff for presenting handgun permit during traffic stop

Handcuffing plaintiff for presenting his handgun permit when stopped wasn’t reasonable. “Because, on the record read in the light most favorable to the non-moving party, no reasonable police officer could have believed he or she had probable cause to arrest … Continue reading

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ND: Co-tenant’s bedroom couldn’t be subject to probation search

Co-tenant’s bedroom in probationer’s house was not a common area subject to a probation search. Failure to object at the time isn’t consent. State v. Cochran, 2021 ND 141, 2021 N.D. LEXIS 141 (Aug. 5, 2021). Consent to search the … Continue reading

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CO: Consent to officer’s entry extended to her briefly leaving and reentering

Defendant’s consent for an officer to enter extended to her reentry after leaving to retrieve a camera and then returning (even before getting it). People v. Stone, 2021 COA 104, 2021 Colo. App. LEXIS 1089 (Aug. 5, 2021). Even though … Continue reading

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NY2: Justified search for mj didn’t justify looking at credit cards for forgery

The officer here could open a zippered pouch looking for marijuana, but he could not look at the credit cards inside to see if they were fraudulent. “On this record, Officer Zaleski’s discovery of three credit cards stacked inside a … Continue reading

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E.D.Cal.: No REP in a contraband cell phone in prison

Defendant had no reasonable expectation of privacy in a contraband cell phone found on him in prison. The contents of the phone were used in a drug distribution indictment. The government got a search warrant for the contents of the … Continue reading

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TX1: Voluntariness of consent shown by officers’ efforts to insure def understood what they were asking

The record supports the trial court’s finding of consent. Neither officer exhibited a firearm, spoke in a harsh or loud tone, or indicated to defendant that he could not leave. Instead, both officers were trying to help defendant understand what … Continue reading

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