W.D.Va.: Def consented but withdrew it; search unreasonable

Despite defendant’s claim that he didn’t speak much English at all, being Russian speaking Ukranian, the court finds consent valid based on gestures on the video where his voice was largely inaudible. However, he clearly withdrew consent and told the officers to get out of the car. He was under mere investigative detention at the time of the stop, not under arrest, so the search incident doctrine cannot justify further search of the car under Gant. Moreover, the product of the search was used to justify it, so the motion to suppress is granted. United States v. Patiutka, 2014 U.S. Dist. LEXIS 184282 (W.D.Va. December 4, 2014).

The entry into the house apparently was premature, but a warrant was being issued, and that’s an independent source for the entry. A photocopy of the search warrant suffices at the hearing; an authenticated copy is not required under the 1003 of the Rules of Evidence. Brooks v. State, 2015 Tex. App. LEXIS 6915 (Tex.App.–Houston (14th Dist.) July 7, 2015).