Georgia sustains a consent sought before warning ticket handed over; consent covered prying open the glove box

Defendant was stopped for a traffic offense, and the officer asked for consent three seconds before handing the warning ticket to the defendant. A request for consent is not per se a continuation of detention. A written consent form was signed. During the stop, the officer noticed screwheads had been tampered with, and he pried open the glove box finding drugs. This was not outside the scope of the consent. Medvar v. State, 286 Ga. App. 177, 648 S.E.2d 406 (2007).*

Washington refuses to adopt a negligence standard under its state constitution for a state Franks violation because it would be unduly burdensome and encroach on the magistrate’s role. State v. Chenoweth, 160 Wn.2d 454, 158 P.3d 595 (2007):

¶31 In sum, Washington courts have consistently applied the Franks standard, requiring a showing of reckless or intentional misstatements or omissions of material facts. [citations omitted] Thus, our prior case law does not suggest a heightened standard for veracity challenges to a facially valid warrant. But we have not considered whether this is the appropriate standard under our state constitution.

. . .

¶34 Thus, drawing the line at reckless or intentional falsehood, and denying challenges based solely on negligent or inadvertent mistake, rests on the language of the warrant clause, which implicitly protects from reckless or deliberate fabrication of the factual allegations comprising probable cause, but not from unintentional errors. As noted earlier, the statutes and court rules in this State relating to issuing a warrant mirror the warrant clause requirements of the Fourth Amendment.

¶35 The Franks decision further rests on the view that an independent magistrate provides constitutionally adequate protection from negligent or inadvertent errors. Limiting veracity challenges to instances of alleged reckless or intentional falsehoods “leaves a broad field where the magistrate is the sole protection of a citizen’s Fourth Amendment rights, namely, in instances where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination.” Franks, 438 U.S. at 170; see also American Law Institute, A Model Code of Pre-Arraignment Procedure § 290.3(1)(a), (b), at 183, 569-70 (1975) (allowing challenges based on an affiant’s “honest mistake” would unduly encroach on the magistrate’s role).

¶36 Like the United States Supreme Court, this court historically followed the common law rule that reviewing courts could not go behind a warrant to challenge the factual allegations comprising probable cause, relying on the view that an independent magistrate provides constitutionally adequate protection from negligent or inadvertent errors. Thus, the Franks test is consistent with this court’s historical deference to a neutral magistrate.

“[T]he police officer reasonably relied in good faith upon the defendant’s wife’s apparent authority to consent to the search of the bedroom closet and the unlocked case which contained the seized weapon ….” People v. Singson, 2007 NY Slip Op 4516, 40 A.D.3d 1015 (2d Dept. 2007).*