{"id":14302,"date":"2014-11-21T11:46:18","date_gmt":"2014-11-21T16:46:18","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=14302"},"modified":"2014-11-21T11:46:18","modified_gmt":"2014-11-21T16:46:18","slug":"nc-excessive-force-as-an-unreasonable-search-has-to-be-raised-in-trial-court-first","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=14302","title":{"rendered":"NC: Excessive force as an unreasonable search has to be raised in trial court first"},"content":{"rendered":"

During a traffic stop, reasonable suspicion was clearly developing, and defendant had something in his hand while denying it. Multiple requests to open his hand were refused, and, fearing a weapon, the officer ultimately had to take defendant down to get the hand open. The question of excessive force for the search thus making it unreasonable wasn\u2019t raised in the trial court, so it\u2019s waived. Even if raised, state case law says that this search would be reasonable. State v. Henry<\/a>, 2014 N.C. App. LEXIS 1151 (November 18, 2014).<\/p>\n

Despite the Fourth and Fifth Amendment applying to forfeiture cases, including the exclusionary rule, the civil rules otherwise apply. The burden of proof is by a preponderance of the evidence, and summary judgment proceedings may be applied. Commonwealth v. All That Certain Lot Or Parcel of Land Located at 605 University Drive, State College, Centre County, PA<\/a>, 2014 Pa. LEXIS 3026 (November 19, 2014).*<\/p>\n

Even if the search was illegal, the state clearly proved inevitable discovery linking a car key on defendant to a car they already knew he owned. [Sounds also like harmless error; so what about the key with all this other evidence of ownership?] State v. Larkin<\/a>, 2014 N.C. App. LEXIS 1172 (November 18, 2014).*<\/p>\n","protected":false},"excerpt":{"rendered":"

During a traffic stop, reasonable suspicion was clearly developing, and defendant had something in his hand while denying it. Multiple requests to open his hand were refused, and, fearing a weapon, the officer ultimately had to take defendant down to … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[52,14,68],"tags":[],"class_list":["post-14302","post","type-post","status-publish","format-standard","hentry","category-excessive-force","category-exclusionary-rule","category-inevitable-discovery"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/14302","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14302"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/14302\/revisions"}],"predecessor-version":[{"id":14303,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/14302\/revisions\/14303"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14302"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14302"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14302"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}