Post details: Pretextual stop admitted by state, but it still wins because of a factual basis for the stop
11/22/06
Pretextual stop admitted by state, but it still wins because of a factual basis for the stop
In Wyoming, the State admits that defendant's stop was pretextual but based on speeding, so it still wins. Fertig v. State, 2006 WY 148, 146 P.3d 492 (November 17, 2006). The court recognized that it is free to interpret its state constitution more broadly than the Fourth Amendment, and it analyzes all the factors involved and concludes that it should not. (This case has a good discussion of state court decisions that have departed from the U.S. Supreme Court on pretextual stops, and the Wyoming court concludes the better rule is to follow the Supreme Court.)
Pretextual arrest issue was foreclosed by facts that clearly showed officer saw defendant crossing the centerline and that defendant did not have a driver's license. His consent to search the car was clearly heard on the videotape of the stop. Casey v. State, 2006 Ark. App. LEXIS 770 (November 8, 2006).*
Defendant's IAC claim failed on search issue where the defendant's mother was present when the police showed up and asked about a gun. Defendant's mother interrogated the defendant who admitted to the gun being under the porch, and that was a sufficient basis for the search for the gun. Counsel could not be ineffective. Ricks v. Commissioner of Correction, 98 Conn. App. 497, 909 A.2d 567 (November 21, 2006).*
Smell of marijuana plus a dropped bag of marijuana justified a search warrant for defendant's house. Boldin v. State, 282 Ga. App. 492, 639 S.E.2d 522 (November 20, 2006):
Further, having found these facts, the trial court correctly ruled that White had probable cause to suspect that contraband was in Boldin's residence. Although the odor of marijuana may not suffice by itself to provide probable cause for the search of a residence, the odor of burning marijuana is one of the factors which, under the totality of the circumstances, will support a finding of probable cause. Here, the officer also observed marijuana in a plastic zip-lock bag on the floor of the garage, after it fell from a garbage bag held by defendant as he fled into the house. The officer's observation of objects within the garage from its threshold, that is, from a vantage point outside the home, "was a lawful 'nonsearch plain view situation,' " supporting a finding of probable cause to suspect that contraband was in Boldin's house.
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