Search exceeded scope of SW, and consent did not validate it

Trial court’s holding that search was overintensive and went into drawers unnecessarily was conceded on appeal, so state argued consent. Trial court’s finding that consent was not proved voluntary was supported by the record. State v. Siliski, 2006 Tenn. Crim. App. LEXIS 747 (September 27, 2006):

Because the trial court accredited the testimony of Investigator Brown, we take as true his account that the defendant told him, “I have nothing to hide, you can search where you want to search, I have nothing to hide, I have done nothing wrong.” According to Investigator Brown, the defendant made this statement after he informed her that he had a search warrant. We conclude that the defendant’s statement did not constitute consent to search in excess of what was authorized by the search warrant. Rather, we view the defendant’s statement to be “no more than acquiescence to a claim of lawful authority.” Id. at 549. In Bumper, the United States Supreme Court held that consent to search is not valid when it is given only after authorities conducting the search assert that they have a search warrant. Id. at 548. The Court rationalized that such a situation involves “coercion-albeit colorably lawful coercion.” Id. at 550. Our supreme court interpreted Bumper to mean that the state “must show by clear and convincing evidence that the consent is not based on the warrant and was not coerced by other factors.” Earls v. State, 496 S.W.2d 464, 467 (Tenn. 1973).

Frisk of man in parking lot at night where cars had been broken into was not based on reasonable suspicion. State v. Martinez, 135 Wn. App. 174, 143 P.3d 855 (September 28, 2006). From the court’s summary:

Article I, section 7 of our state constitution requires that an investigatory stop be based on articulable particularized facts that support a substantial possibility that a person is engaged in criminal activity. State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). Here, an officer was patrolling on foot in an apartment complex located in a high crime area. Vehicle prowling had been reported there in the past. The officer saw Jeremiah Martinez near several parked cars. Mr. Martinez walked quickly away. The officer asked him whether he lived there. Mr. Martinez said he did not. So the officer detained and frisked him while he checked his identification. This seizure was not based on a particularized suspicion of criminal activity by Mr. Martinez.

LA Supreme Court already decided the search issue in the case, and it was binding on remand. State v. Strange, 940 So. 2d 819 (La. App. 3d Cir. September 27, 2006), on remand from State v. Strange, 876 So. 2d 39 (La. 2004).*

Where a motion to suppress in a PCR petition was not shown to be possibly successful, defense counsel could not be ineffective for not pursuing it. Terry v. State, 2006 Tenn. Crim. App. LEXIS 746 (September 27, 2006).*