In this death penalty appeal, the heavy weight of authority (surveying many cases) is that defendant’s refusal to consent cannot be used to show he is hiding evidence or to show consciousness of guilt. Some cases find it a due process issue. And, the state doesn’t really respond to this argument at all. Nevertheless, the court applying plain error review finds this harmless error on this record. Bosse v. State, 2017 OK CR 10, 2017 Okla. Crim. App. LEXIS 11 (May 25, 2017).
There was reasonable suspicion for detaining defendant 40 minutes for a drug dog based on the smell of burnt marijuana in his rental car and loose marijuana on the seat. [He was not the renter, his brother was, and standing isn’t mentioned.] State v. Church, 2017-Ohio-4103, 2017 Ohio App. LEXIS 2149 (5th Dist. May 30, 2017).*