{"id":1648,"date":"2008-12-23T17:19:47","date_gmt":"2008-01-01T10:23:54","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-01-01T10:23:54","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1648","title":{"rendered":"Unreadable expiration sticker stop should have ended as soon as officer saw it was valid"},"content":{"rendered":"

When officer who stopped defendant’s car because he could not see the expiration date could see the expiration date as he approached the car on foot, everything after that was invalid. Meredith v. State<\/a>, 878 N.E.2d 453 (Ind. App. 2007):<\/p>\n

Likewise, here, we conclude that once Officer Lackey had verified the valid expiration date on the temporary tag, and prior to any personal contact with Meredith, the objective purpose for the investigative detention had been satisfied. Thus, Officer Lackey was constitutionally barred from detaining Meredith any further. But Officer Lackey pushed the envelope beyond constitutional limits once, if not twice. First, Officer Lackey continued to detain Meredith without probable cause or reasonable suspicion after he had confirmed that the temporary tag was valid. And Lackey then detained Meredith after he had determined that Meredith had not consumed any alcohol. <\/p><\/blockquote>\n

Rebuttal question of officer that defendant did not remain silent when asked about consent, but defendant refused consent, was proper to impeach the defendant. State v. Chavez<\/a>, 191 P.3d 760 (Colo. App. 2007):<\/p>\n

It follows that the use of evidence of a defendant’s refusal to consent to a search for impeachment purposes does not impermissibly burden the Fourth Amendment right to be free from unreasonable searches and seizures. See Coulthard<\/em>, 230 S.W.3d at 582-84 ; see also People v. Summitt<\/em>, 104 P.3d 232, 235 (Colo. App. 2004) (recognizing that “[e]vidence that a defendant asserted a constitutional right may be admitted to impeach when the defendant testifies at trial”), rev’d on other grounds, 132 P.3d 320 (Colo. 2006); cf. McNatt<\/em>, 931 F.2d at 256-58 (evidence of the defendant’s refusal to consent to a search of his truck was a fair response to his claim an officer had planted cocaine in his truck). Thus, where, as here, the defendant testifies at trial, evidence of the defendant’s refusal to consent may be admitted for purposes of impeachment (if relevant for that purpose) and a prosecutor may comment on that refusal in closing argument.<\/p>\n

Here, the prosecutor did not introduce evidence of defendant’s refusal to consent to a search during the People’s case-in-chief, nor did the prosecutor allude to that refusal in opening statement. However, after defendant denied living at the apartment on direct examination by his counsel, the prosecutor sought to introduce evidence of defendant’s refusal in the course of cross-examining defendant, and such evidence was later introduced in rebuttal.<\/p>\n

One inference a reasonable juror could draw from defendant’s refusal to consent to a search (though not the only one) was that he had dominion and control over the apartment, Dozal<\/em>, 173 F.3d at 794, and therefore evidence of that refusal was relevant to impeach him on that point. Accordingly, defendant’s right to due process was not violated by admission of the evidence.<\/p>\n

. . .<\/p>\n

Because defendant volunteered that he had invoked his right to remain silent, and the prosecutor did not comment on it in the jury’s presence, we do not perceive any violation of defendant’s right to due process. Cf. People v. Chavez<\/em>, 545 P.2d 716, 720-21 (Colo. App. 1975) (not published pursuant to C.A.R. 35(f)) (no error in prosecutor’s references in rebuttal closing argument to defendant’s failure on the date of the offense to mention factual basis for defense relied on at trial where the defendant, not the prosecutor, elicited evidence of the defendant’s exercise of his right to remain silent); State v. Jennings<\/em>, 333 N.C. 579, 430 S.E.2d 188, 199-200 (N.C. 1993) (no error where defendant’s counsel, not prosecutor, elicited testimony that defendant exercised his right to remain silent); Commonwealth v. Caputo<\/em>, 439 Mass. 153, 786 N.E.2d 352, 362 (Mass. 2003) (same); People v. Gray<\/em>, 166 Ill. App. 3d 586, 520 N.E.2d 93, 97, 117 Ill. Dec. 103 (Ill. App. Ct. 1988) (same).<\/p><\/blockquote>\n

Comment:<\/em> This opinion really troubles me, but the defendant opened the door for some stupid reason, so we’re stuck with it.<\/p>\n","protected":false},"excerpt":{"rendered":"

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