{"id":839,"date":"2008-07-21T15:51:06","date_gmt":"2007-03-11T08:58:50","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-03-11T08:58:50","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=839","title":{"rendered":"Idaho: Searching bystander during a probation search also requires reasonable suspicion"},"content":{"rendered":"

When a probation search occurs, there must be reasonable suspicion to search a bystander on the premises with the probationer. If Summers<\/em> requires that for a search warrant, it has to apply here as well. In this case, the bystander was outside at the time, and he posed no threat to the probation officers. State v. Reynolds, 143 Idaho 911, 155 P.3d 712 (2007).<\/p>\n

Defendant’s consent was shown to be voluntary on the totality after having evaluated his testimony and his criminal history. United States v. Simpson, 2007 U.S. Dist. LEXIS 16729 (M.D. Tenn. March 8, 2007):<\/p>\n

Defendant is twenty-six years old and, while his educational background is unknown, he understands the English language and was articulate during the evidentiary hearing. He has an extensive criminal record, including convictions for being a felon in possession of a firearm and possession of cocaine. Based on his extensive encounters with law enforcement, there is little doubt he knew about his right to refuse to consent. This is further evidenced by the fact that he initially did not give consent to search.<\/p>\n

Further, at the time of the consent, Defendant was not in handcuffs and there was no coercive conduct by the police. Defendant was not physically restrained or even touched prior to the consent, nor was Defendant verbally threatened in any way. The officers did not have their weapons drawn when they approached the Defendant, and the whole encounter until the time consent was given was only a couple of minutes.<\/p>\n

While Defendant claims he did not consent to search, the Court does not credit his testimony. If Detective Stokes was making up the story about consent being given, it would be easier to have simply testified that Defendant consented as soon as he was asked, instead of testifying that Defendant initially questioned the propriety of a search since he “had done nothing wrong.”<\/p>\n

Since this Court credits the testimony of Detective Stokes and rejects the testimony of the Defendant, the Government has shown, by clear and convincing evidence, that Defendant knowingly and voluntarily consented to a search. Accordingly, Defendant’s Motion to Suppress Evidence will be denied.<\/p><\/blockquote>\n

Defendant did not object to consent search at trial. On review for plain error, his argument that the officers failed to warn him of his right to refuse is foreclosed by Schneckloth<\/em>. On the totality of circumstances, consent was voluntary. As to defendant’s argument of alleged “baseless threats” to get a warrant if the defendant did not consent, they were hardly “baseless”–there was plenty of probable cause. United States v. Gutierrez, 221 Fed. Appx. 446 (7th Cir. 2007).*<\/p>\n

Arkansas requires that a state’s interlocutory appeal from a grant of a suppression motion be in the interest of the uniform application of the law, and a fact-based determination does not apply. State v. Jones, 369 Ark. 195, 242 S.W.3d 119 (2007):<\/p>\n

As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. See State v. Pittman,<\/em> 360 Ark. 273, 200 S.W.3d 893 (2005). We do not permit State appeals merely to demonstrate the fact that the trial court erred. See id.<\/em> Thus, where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. See id.<\/em> Similarly, where the resolution of the issue on appeal turns on the facts unique to the case or involves a mixed question of law and fact, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. See id.<\/em> Finally, where an appeal raises an issue of the application, not interpretation, of a criminal rule or statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State under Rule 3. See id.<\/em><\/p>\n

Here, the State claims that the circuit court “applied a flawed interpretation of the law to suppress evidence seized pursuant to a search warrant.” We hold that the resolution of the issues presented would necessarily require an intensive factual discussion. Therefore, this appeal is not one requiring interpretation of our criminal rules; instead, it raises issues involving the application of our rules to the facts of the case. Moreover, it is clear that the circuit court’s determination necessarily turned on the circuit court’s assessment of the witnesses’ credibility. We have never wavered on our longstanding rule that it is in the province of the circuit court, not this court, to determine the credibility of witnesses. See State v. Nichols, supra.<\/em> Nor would a review of this appeal have widespread ramifications on the interpretation of our criminal law. Accordingly, we hold that it does not involve the correct and uniform administration of the criminal law and does not fall within the confines of Ark. R. App. P.–Crim. 3. We, therefore, dismiss the appeal.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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