Post details: Officer cannot patdown a person as a matter of course before putting that person in a police car
03/24/08
Officer cannot patdown a person as a matter of course before putting that person in a police car
An officer cannot patdown a person as a matter of course before putting that person in a police car without reasonable suspicion. State v. Brockel, 2008 ND 50, 746 N.W.2d 423 (2008):
[*P11] The State argues that even if there was no reasonable suspicion, the pat-down was justified because Brockel consented to the search. Voluntary consent is an exception to the warrant requirement. State v. DeCoteau, 1999 ND 77, P9, 592 N.W.2d 579. "The existence of consent is a question of fact to be determined from the totality of the circumstances." State v. Graf, 2006 ND 196, P10, 721 N.W.2d 381. Mere acquiescence to police authority is not sufficient to show consent; it must be definitive. State v. Genre, 2006 ND 77, P20, 712 N.W.2d 624. "The test is whether a reasonable person would believe the person's conduct showed consent." Id.
[*P12] The officer testified that he requested permission before conducting the pat-down search of Brockel, and the district court did not find whether Brockel consented to the search.
[*P13] We conclude the district court erred when it concluded as a matter of law that Iverson could search Brockel before placing him in his patrol car. Either reasonable suspicion or voluntary consent needs to be present to justify a pat-down search; however, the court made no findings whether either was present in this case. On remand, the court must make findings as to whether there was reasonable suspicion or consent for the search to be justified in this case.
Defendant's statement was not sufficiently attenuated from his unlawful arrest, and it is suppressed. State v. Wagner, 39 Kan. App. 2d 279, 179 P.3d 1149 (2008).*
Trial court erred in, although finding consent was voluntary, not considering whether the defendant's statement was a product of an illegal search before that. Reversed. State v. Gorup, 275 Neb. 280, 745 N.W.2d 912 (2008).*
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