OH holds that effort to limit consent showed defendants knew what was there

An Ohio court of appeals held that defendant’s efforts to limit consent to keep police from the basement could be used against her to show knowledge of what was in the basement. State v. Kuhn, 2006 Ohio 5059, 2006 Ohio App. LEXIS 4981 (9th Dist. September 29, 2006) (Lexis overview):

Officers responded to a call to check the welfare of a child at defendant’s residence. An officer told defendant that he heard of possible drug use in the house, and he received permission to search the house. When defendant’s daughter brought out a crack pipe and a spoon, which tested positive for cocaine, defendant and her husband both tried to prevent the officer from searching the basement. A search of the basement revealed a box with an open lid with several used needles in it, a metal pipe, a chore boy, tubes, and clear baggies containing cocaine. The court held that the evidence was sufficient to support defendant’s convictions. The items seized were illegal drugs and drug paraphernalia, as prohibited by [Ohio law]. The evidence was also sufficient to show that defendant “possessed” the drugs and the paraphernalia …. Defendant’s attempt to limit her consent to the officer’s search of the house so as to exclude the basement from the search led the officers to conclude that defendant knew what was in the basement. Moreover, defendant’s husband stated that the crack pipes and tubes belonged to defendant.

Comment: So, assertion of a constitutional right is evidence of guilt? This case is obviously wrong.

Turning off plaintiff’s water service did not implicate, inter alia, any Fourth Amendment right. Gagliardi v. Clark, 2006 U.S. Dist. LEXIS 70509 (W.D. Pa. September 28, 2006):

The court finds that, based upon the facts plead, even drawing all inferences in plaintiffs favor, plaintiffs have not stated a claim that their persons were seized, nor have they stated a claim that their personal effects were seized. As the Supreme Court made clear in Soldal: The Fourth Amendment “does not protect possessory interests in all kinds of property.” 506 U.S. at 63 n.7 (citing Oliver v. United States, 466 U.S. 170, 176-77 (1984)). Access to utility service cannot reasonably be construed as a “personal effect” which is protected by the Fourth Amendment. The court has located no federal case law supporting such a view, although there are decisions in which plaintiffs challenged the termination of utility service subject to the procedural due process protections of the Fourteenth Amendment. See, e.g., Ransom v. Marazzo, 848 F.2d 398, 412 (3d Cir. 1988); but see Gardner v. McGroarty, 68 Fed. Appx. 307, 311 (3d Cir. 2003) (unpublished) (holding that the search and seizure of an apartment building without a warrant, the posting of it as unfit for habitation, the evacuation of the tenants, and the discontinuation of utility services did not constitute an unlawful search and seizure under the Fourth Amendment).

The court, therefore, finds that based upon the facts plead by plaintiffs that plaintiffs cannot state a Fourth Amendment illegal seizure claim against any defendant. The court will dismiss this claim with prejudice.

Valid stop became unreasonable in length, and motion to suppress should have been granted. Clarke v. State, 854 N.E.2d 423 (Ind. App. September 29, 2006):

We agree with Clarke, however, that, under the facts of this case, the consensual encounter escalated into an investigatory stop, thereby invoking the protections of the Fourth Amendment. To be sure, after returning to Clarke his license and registration, Officer Eastwood did not inform Clarke that he was free to leave, nor did she cite him for an infraction or other violation of law. n3 Rather, Officer Eastwood informed Clarke that she was investigating a narcotics complaint. Officer Eastwood then asked Clarke an incriminating question–specifically, whether he had anything illegal in his vehicle. Clarke responded that he did not. Still, Officer Eastwood continued with her investigation, this time asking Clarke if she could search his car, to which Clarke repeated that he did not have anything illegal in the vehicle. Officer Eastwood again asked Clarke if he minded if she searched his car, and Clarke gave the ambiguous response of “no.”