{"id":1719,"date":"2008-01-25T16:08:52","date_gmt":"2008-01-24T18:39:07","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-01-24T18:39:07","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1719","title":{"rendered":"Defendant abandoned his DNA in semen left on a sheet left after a rape"},"content":{"rendered":"

Defendant had no standing to contest the seizure of evidence from a rape victim of his semen left on sheets he left in her house and then using that to get an order for his DNA. State v. Homz<\/a>, 2007 Wisc. App. LEXIS 1147 (December 12, 2007)*:<\/p>\n

P12 Homz also did not have a reasonable expectation of privacy in the sheet or the semen deposited on the sheet. A reasonable expectation of privacy in property depends, in part, on whether the person exercised dominion over the property. See State v. Whitrock<\/em>, 161 Wis. 2d 960, 989, 468 N.W.2d 696 (1991). Here, Homz abandoned the sheet and the semen deposited on the sheet. The rest of Homz’s argument about the legality of the evidence derived from the sheet is not supported by citation to legal authority. We will not consider it further. See State v. Pettit<\/em>, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).<\/p>\n

P13 Homz challenges the evidence obtained pursuant to a search warrant authorizing a swab of his mouth for DNA testing purposes. Homz premises this challenge on an assertion that the semen and DNA on the sheet was discovered in a warrantless search. We have upheld the legality of the means by which Homz’s semen and DNA were found on the sheet produced by the victim’s mother. The match between the DNA found on the sheet and the DNA found on the victim was the basis for a search warrant to obtain DNA from Homz directly. Homz’s DNA was lawfully gathered.<\/p><\/blockquote>\n

Plaintiff showed a sufficient factual dispute that defendant officer failed to corroborate an informant as a basis for arrest to survive summary judgment. Higgins v. Gee, 2008 U.S. Dist. LEXIS 4313 (M.D. Fla. January 18, 2008).*<\/p>\n

In the same case, plaintiff made a showing of a refusal to consent that led to a search anyway, and that survived summary judgment. Higgins v. Gee, 2008 U.S. Dist. LEXIS 4328 (M.D. Fla. January 18, 2008)*:<\/p>\n

What pushes this case over the line is the fact that Plaintiff repeatedly refused to consent to a search, 2 coupled with Davis’s threats to “smash everything you own,” or “tear his place apart,” or “f – your sh-t up” if Plaintiff did not consent to a search. On these facts, Plaintiff’s consent was not the product of “an essentially free and unconstrained choice.” See United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla.<\/em>, 363 F.3d 1099, 1102-03 (11th Cir. 2004) (police refused defendant’s request to speak with attorney, to make telephone call, and to get more clothes because defendant was in only a towel, and told defendant that if they had to wait for a warrant they would “tear his house apart and arrest his girlfriend”). The Court also finds that Plaintiff’s eventual retraction of his previous refusals to consent weighs in favor of finding that Plaintiff’s ultimate acquiescence was the product of Davis’s coercive tactics, not a voluntary choice. Accordingly, the Court finds that Plaintiff has sustained his burden to show that a constitutional violation occurred, on the facts alleged in the Amended Complaint.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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