{"id":2067,"date":"2010-03-21T21:41:36","date_gmt":"2008-05-10T08:54:34","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-05-11T09:22:19","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2067","title":{"rendered":"Officer’s opening car door and directions were a “show of authority” against consent"},"content":{"rendered":"

Keeping a driver’s license continued a stop, and the officer’s words and actions in opening the vehicle door communicated that the defendant had to comply. State v. Icard<\/a>, 190 N.C. App. 76, 660 S.E.2d 142 (2008):<\/p>\n

Moreover, even if the pickup truck could have pulled forward to exit the parking lot, Officer Moore maintained possession of Mr. Coleman’s license and registration for the duration of this encounter, essentially preventing him from leaving. Another officer arrived and parked his vehicle to the right of the truck, with his takedown lights shining on the passenger side. Combined with Officer Moore’s words and actions in opening the door to the pickup truck after Defendant had essentially refused to cooperate with his requests for information, we conclude that an objective evaluation of the totality of these circumstances “would have conveyed … to a reasonable person[,]” including one who was a passenger in the pickup truck, that “[s]he was being ordered to restrict [her] movement.” California v. Hodari<\/em><\/a>, 499 U.S. 621, 628, 111 S. Ct. 1547, 113 L. Ed. 2d 690, 698 (1991). As such, the police in this instance “restrained the liberty of a citizen,” Bostick<\/em><\/a>, 501 U.S. at 434, 115 L. Ed. 2d at 398, and the encounter was subject to the protections of the Fourth Amendment. <\/p><\/blockquote>\n

Record supported the conclusion that defendant consented to a strip search. State v. Neal<\/a>, 2008 N.C. App. LEXIS 835 (May 6, 2008):<\/p>\n

In the instant case, however, a reasonable person would have understood from the circumstances and exchanges between the officers and Defendant that the police intended to conduct a strip search of Defendant. See Jimeno<\/em><\/a>, 500 U.S. at 251, 114 L. Ed. 2d at 302. Officer Watkins informed Defendant that he needed to conduct a “better” search to determine what was in Defendant’s pants and that a female police officer was on her way. Defendant consented to a “more thorough” search. Officer Mauney asked Defendant if she understood what was going to happen; Defendant responded that she did. Defendant was “extremely cooperative” during the search and never indicated that her consent did not extend to a strip search. Being taken to a women’s restroom was another sign that the police intended to search inside of Defendant’s clothing. <\/p><\/blockquote>\n

Comment:<\/em> This holding is, to me, completely indefensible and grants all deference to the police. This case shows mere acquiescence to a claim of authority. Does anyone know that they can object to a search under these circumstances, or are they just going along? The legal presumption is that every warrantless search is reasonable, and the proof here shows only that the defendant was “going along.” Merely “going along” is not consent. <\/p>\n","protected":false},"excerpt":{"rendered":"

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