Defendant was stopped and was alleged to have consented to a search. The officer who allegedly received the consent was sitting in the courtroom at the suppression hearing and was not called by the government. The court finds that the consent was not validly given. There was, however, reasonable suspicion, and then a dog alerted and that gave probable cause. United States v. Dyson, 2007 U.S. Dist. LEXIS 30030 (S.D. Ohio April 24, 2007):
The testimony further shows that, subsequent to the canine sniff, when Lyons informed Defendant of the result and requested permission to search the Maxima, Defendant responded to the effect of “I don’t want you to but you’re going to search anyway.” Such statement is akin to an expression of futility in resistance to authority, rather than a knowing, voluntary, and unequivocal consent, as required under United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999). The Court finds well-taken Defendant’s position that at this point in time of the investigation, the government has failed to establish Defendant’s consent to a search of his vehicle.
Warrant for seizure of “electronic equipment” included a tape recorder and the tape in it. United States v. Freeman, 2007 U.S. Dist. LEXIS 29987 (D. Kan. April 23, 2007):
The court also finds that the seizure of the tape itself was authorized under the warrant because the tape bore a “reasonable relation to the item[s] named in the warrant.” United States v. Gentry, 642 F.2d 385, 387 (10th Cir. 1981). “When a logical nexus exists between seized but unnamed items and those items listed in the warrant, the unnamed items are admissible.” Id. at 387 (citing Mesmer v. United States, 405 F.2d 316 (10th Cir. 1969)) (further citations omitted). The warrant in this case specifically authorized the seizure of items which could contain records of drug transactions, namely: paperwork, tax records, computer hardware, software, storage components, disks, CD ROM, photos, and video tapes. Certainly there is a logical nexus, as described in Gentry, between these items and a microcassette tape, which is reasonably related to records of drug transactions.
Officer’s hunch that something was amiss with the defendant parking his car near parking lot exit and hearing a thud which could have been a dropped weapon turned out to be right, but it was still a hunch that the defendant was up to no good. People v. Perrusquia, 150 Cal. App. 4th 228, 58 Cal. Rptr. 3d 485 (4th Dist. 2007):
The officer in this case had a hunch that something was amiss with defendant, and he turned out to be right. That he was right, however, cannot be used to retroactively justify a detention. As the trial court noted at the hearing’s conclusion: “[T]his is why police work is difficult, complex and challenging[,] because it’s difficult from a moral or practical standpoint to criticize the officer’s actions.” We agree, yet at the same time we also agree with the trial court that the facts did not meet the legal standard for a detention. The officer must have “specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C., supra, 21 Cal.3d at p. 893.)
Evidence supported trial court’s conclusion that the defendant consented to officers’ entry during a knock-and-talk. There was a plain view. While the officers conducted a protective sweep that was apparently unjustified, the protective sweep did not lead to the plain view, so it was not relevant. State v. Nicholas, 958 So. 2d 682 (La. App. 5th Cir. 2007), released for publication July 2, 2007.*
