{"id":3448,"date":"2010-03-20T13:14:32","date_gmt":"2009-10-18T09:44:35","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-10-18T09:44:35","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3448","title":{"rendered":"OH4: CODIS hit is “clear-cut” PC for a SW for DNA confirmation"},"content":{"rendered":"

There clearly was PC for a search warrant for defendant’s DNA after DNA from a burglary tool resulted in a CODIS hit. The search warrant was for a confirmation. State v. Norman<\/a>, 2009 Ohio 5458, 2009 Ohio App. LEXIS 4595 (4th Dist. October 8, 2009)*:<\/p>\n

[*P29] Here, we find that Detective Rourke’s affidavit supports a finding of probable cause. In relevant part, the affidavit states the following: “The tire tool and mask were collected as evidence and submitted to OHIO BCI for analysis. A DNA profile was established from the tire tool and entered into CODIS, a DNA database. On 11\/26\/07 Ohio BCI notified detective that a hit was received on the profile to Brian M. Norman ***, who is currently incarcerated at Chillicothe Correctional Institute. Detective is seeking to personally obtain oral swabs from Brian Norman to confirm the DNA match.”<\/p>\n

[*P30] This is not one of the difficult cases contemplated by Ventresca. On the contrary, it would be hard to find a more clear-cut case of an affidavit supporting probable case. In his affidavit, Detective Rourke stated that a division of the Ohio Attorney General’s Office (Ohio BCI) notified him that Norman’s DNA profile matched the DNA profile linked to the robbery. Therefore, the affidavit clearly establishes circumstances that warrant suspicion. And Norman’s highly speculative arguments about BCI and Detective Rourke fall far short of demonstrating any error, let alone plain error, in the trial court’s denial of Norman’s motion to suppress.<\/p><\/blockquote>\n

The officer stopped defendant’s car for suspicion of DUI based on a dispatch report where the caller was also following defendant’s car describing what it looked like and what was going on. State v. Greer<\/a>, 2009 Ohio 5351, 2009 Ohio App. LEXIS 4507 (8th Dist. October 8, 2009):<\/p>\n

[*P22] In this case, the dispatch tapes were admitted and established that the informant was a female who was observing defendant’s erratic driving firsthand during the course of the 911 call. The recordings also reflect that the informant observed the police following the subject vehicle. The informant was able to identify the type and color of defendant’s vehicle and his course of travel. Officer Kroczak confirmed the stop occurred moments after the informant’s call. It also appeared to Officer Kroczak that defendant was attempting to evade her by driving through a parking lot for no apparent purpose. In addition, upon approaching the vehicle, Officer Korczak noticed defendant’s “eyes were very bloodshot, red, his speech and his motions were slow *** The odor of the alcohol was strong.” His speech was slurred and his eyes were “glossy looking.” Immediacy and personal observation led to further credibility and greater reliability. Maumee, 87 Ohio St.3d at 302.<\/p><\/blockquote>\n

Defendant\u2019s stop was effectively over, and he consented to further questions. United States v. Velazquez<\/a>, 2009 U.S. App. LEXIS 22743 (10th Cir. October 16, 2009) (unpublished)*:<\/p>\n

We agree with the district court that we are bound by our precedent to conclude that Mr. Velazquez’s discussion with Trooper Ranieri, after receiving his warning, was consensual. The district court found that Trooper Ranieri returned Mr. Velazquez’s documentation, told him to take care, walked briefly away from the vehicle, and then stepped forward again before asking Mr. Velazquez if he had anything illegal in the car. Although Trooper Ranieri did not specifically inform Mr. Velazquez that he was free to leave, he did say, “You guys take care. Thanks for your time” and took a few steps away from the car. We cannot say that any of these factual findings was clearly erroneous, and we have repeatedly found facts along these lines sufficient to suggest an end to the traffic stop detention and sufficient to signal that subsequent conversation with the officer is consensual. See, e.g., United States v. Ledesma, 447 F.3d 1307, 1315 (10th Cir. 2006) (“Phrases like ‘thank you’ and ‘have a safe one’ signal the end of an encounter, and afford a defendant an opportunity to depart. Although [the officer] did not explicitly inform [the defendant] and her passenger that they were free to leave, [his] words of farewell suggested that any subsequent discussion was consensual.”); United States v. Wallace, 429 F.3d 969, 975 (10th Cir. 2005) (initial detention transformed into a consensual encounter when trooper returned driver’s paperwork, issued a citation, and said, “That’s all I’ve got”); Anderson, 114 F.3d at 1064 (detention became consensual when trooper handed driver a warning citation and returned his papers, even though trooper did not tell driver he was free to go); United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997) (detention ended and encounter became consensual when officer returned documentation, even though officer never told driver he was free to go); United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) (because initial detention ended when officer returned license and registration, subsequent questioning was consensual, even if officer did not tell driver he was free to go).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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