NY4: Testimony at trial can’t be used on appeal of a suppression issue

Even if defendant had standing, the search was justified by consent. “In contending that the resident did not give consent, defendant improperly relies on testimony of the resident of the home at the first trial, which ended in a hung jury. ‘[T]estimony subsequently elicited at trial may not be considered in connection with a challenge to a pretrial suppression determination’”. People v. Kabir, 2017 NY Slip Op 02571, 2017 N.Y. App. Div. LEXIS 2522 (4th Dept. March 31, 2017).

“Defendant is correct that ‘a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.’ Ybarra v. Illinois, 444 U.S. 85, 86, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). However, the Court also recognizes that ‘the standard for probable cause is not terribly demanding.’ United States v. Collins, 427 F.3d 688, 691 (9th Cir. 2005).” Here, there was several more that suspicious inferences that could be drawn that pointed to probable cause to believe that defendant was involved in a marijuana off-load operation at a Santa Barbara beach. United States v. Huizar, 2017 U.S. Dist. LEXIS 46989 (C.D. Cal. March 27, 2017).*

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