Consent to give DNA sample in an assault case was not improperly obtained when the police intended to use it in a murder case which defendant had already been interviewed about

The defendant consented to the taking of a DNA sample, but under the police pretext that it was needed for an assault case. They intended to use it in a murder investigation against the defendant, and they had already questioned him about the homicide. State v. Wilcox, 2006 Ohio 6777, 2006 Ohio App. LEXIS 6693 (10th Dist. December 21, 2006):

[*P49] Defendant concedes that he voluntarily gave the police the requested saliva sample; however, he argues that his consent should be considered involuntary considering the police improperly deceived him. Defendant seems to argue that the police deceived him as to how his DNA would be used. Defendant argues that consent was given as to an unrelated assault case, but not for use in this aggravated murder case. In essence, defendant argues that he was deceived because he was not informed that the police wanted a saliva sample in order to investigate the deaths of Mr. Westbrook and Alamar. Defendant’s deception argument is unpersuasive, as Detective Dorn’s testimony at the suppression hearing indicated that he interviewed defendant regarding the homicides before he asked for the saliva sample. Thus, defendant reasonably understood that the police were investigating the homicides at the time he voluntarily gave the police the saliva sample.

Search warrant in drug case was specific and not overbroad. It was much more specific than the warrants in the cases relied on by the defendant. United States v. Shine, 2006 U.S. Dist. LEXIS 92238 (D. Vt. December 15, 2006).*

When a defendant flees the police, he is not seized. State v. Lott, 2006 Ohio 6796, 2006 Ohio App. LEXIS 6718 (5th Dist. December 19, 2006).*

Consent was given to look in a suitcase, but that did not implicitly constitute consent to the officer to open folded tin foil found inside. The court also disagreed that the folded tin foil “announced its contents.” State v. Fugate, 210 Ore. App. 8, 150 P.3d 409 (December 20, 2006):

In that casual, conversational context, [Officer] Huber himself did not appear to believe that defendant had consented to the opening of the tin foil merely by handing it to him. Instead, after defendant did so, Huber asked him what was inside the foil. If Huber had believed that he had permission to open the fold, he would have had no reason to ask defendant what was inside. Although asking the question most prominently suggested that Huber did not subjectively believe that defendant had consented to the search of the tin foil’s contents–which is not relevant here–it also is some evidence that a reasonable person would not have understood that handing over the tin foil in response to the officer’s request to “see” it included consent to opening it to examine its contents.

Here, each verbal exchange between defendant and Huber was discrete. Significantly, in none of those exchanges did Huber ask defendant if he could look inside anything. Nor did defendant’s nonverbal conduct, just seconds earlier, in opening and closing the black carrying case to show Huber the stereo, indicate anything but a very limited desire to cooperate on the part of defendant. By contrast, in Allen, the search of a metal container within a purse was preceded by a request to look inside the purse; the defendant agreed. As a consequence, it was logical to infer that her consent encompassed the opening of other closed containers found within the purse. The same was true in Charlesworth/Parks (search of closed container in car preceded by unrestricted consent to request to search car) and Harvey (same). We find no similar implicit manifestation of consent to open anything in this case. It is true that, as in Allen, defendant here did not object when Huber opened the tin foil. However, there is no evidence that he had a meaningful opportunity to object or, for that matter, that it would have availed him to do so. In the totality of circumstances, we conclude that a reasonable person would have understood that, by handing the folded tin foil to the officer in response to a request to “see” it, defendant was consenting to an examination of the tin foil itself, not to its opening and the examination of its contents. It follows that the trial court erred in denying defendant’s motion to suppress.