Indiana holds, based on a 1921 case, that the failure of the officer to file the search warrant affidavit with the magistrate before the issuance of the warrant voids the warrant under state law. State v. Rucker, 861 N.E.2d 1240 (2007):
Furthermore, in State v. Mason, 829 N.E.2d 1010 (Ind. Ct. App. 2005), the detective failed to file the affidavit for twenty-eight days after the issuance of the search warrant. There we stated, “the delay was unnecessary, especially given the clarity the General Assembly employed in the statutory requirement to provide a copy of the search warrant and probable cause affidavit to the judge at the time these documents are presented for approval and signing.” Id. at 1021. Although the statements made in Mason were dicta, we will follow the pronouncement of that case and in doing so, the intent of the General Assembly. Thus, due to Sergeant Ewing’s failure to file the affidavit and warrant before conducting the search, “the warrant was not supported by ‘oath or affirmation,’ as required by the constitutional provision against unreasonable search and seizure, and was illegal.” Id. (quoting Thompson, 130 N.E. at 413).
Indiana reiterates that inventory searches are better conducted at the impound lot rather than at the scene. Widduck v. State, 2007 Ind. App. LEXIS 355 (February 28, 2007):
Thus, impoundment of the Durango was proper, and we believe, under the circumstances, would have been preferable. Moreover, as this court has previously noted, inventory searches conducted at the impound lot by an officer assigned to such duties are greatly preferred to searches conducted at the scene, without a warrant, by the arresting officer. See Edwards v. State, 762 N.E.2d 128, 134 (Ind. Ct. App. 2002), aff’d on reh’g by 768 N.E.2d 506, trans. denied.
However, the touchstone of Fourth Amendment analysis is “reasonableness.” See, e.g., Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). While we believe this case to be a “close call,” the record before us is devoid of any indicia of pretext or subterfuge for general rummaging. Under the particular facts and circumstances of this case, we cannot conclude Officer Stargel’s subsequent decision to allow the driver to leave with the vehicle renders the initial inventory search unreasonable. Therefore, we conclude that the trial court did not abuse its discretion when it admitted the crack pipe into evidence.
Failure to use a turn signal is a valid basis for a stop. State v. Sneed, 2007 Ohio 853, 2007 Ohio App. LEXIS 744 (4th Dist. February 26, 2007).*
In the context of a “trespass” at a fire scene at defendant’s home by crossing a police line of the proverbial yellow tape, the defendant was shown to have been dispossessed by consent and then entered without appropriate permission. The court viewed it as a search issue, as well. State v. White, 211 Ore. App. 210, 154 P.3d 124 (2007)*:
We conclude that, viewing the evidence in the light most favorable to the state and giving the state the benefit of all reasonable inferences, the factfinder could reasonably find from the circumstances that the scope of defendant’s consent included exclusion from his property. First, the evidence indicates that the purpose of the consent form was to allow the police to conduct a fire investigation. A reasonable person could find that defendant understood that, when the police are investigating a fire, it is important to keep contamination of the scene to a minimum, which requires that persons other than the police must stay off the property. Additionally, at the time defendant signed the form, the crime-scene investigation tape explicitly stating, “FIRE LINE DO NOT CROSS,” had been secured around defendant’s residence, providing a further indication that the investigation to which defendant was consenting would involve barring unauthorized persons from the residence. Finally, the investigator had already explained to defendant that, once the investigation was underway and the tape was secured, he would not be allowed onto the property. Accordingly, in light of the particular circumstances of this case, it is reasonable to infer that the scope of defendant’s consent included exclusion from his property.
There may be other reasonable inferences that would support a finding that defendant’s scope of consent did not encompass dispossession. However, when at least one inference supports a verdict against a defendant, as is the case here, it is for the factfinder to choose between the competing inferences, and a motion for a judgment of acquittal should be denied. State v. Derry, 200 Ore. App. 587, 591, 116 P.3d 248 (2005), rev den, 340 Ore. 34 (2006).
Finally, defendant argues that, even if he had consented to dispossession, he revoked that consent when he entered his property. We disagree. The investigator testified that the form defendant signed outlined the procedure by which to revoke consent, indicating that, in order to revoke, defendant needed to tell the police that he wanted them out of his house. There is no evidence in the record that defendant made any such statement to anyone when he entered his property in violation of the officer’s direction to stop. Accordingly, the trial court correctly denied defendant’s motion for judgment of acquittal.
In an ineffectiveness claim for not filing a motion to suppress, defense counsel has a duty to file any arguable motion to suppress, but defendant still has to show prejudice by the failure to do so. State v. Montgomery, 2007 Tenn. Crim. App. LEXIS 168 (February 26, 2007)*:
This Court has stated that, if arguable grounds exist to suppress incriminating evidence, then an attorney, as a zealous advocate for the client, should move to suppress that evidence. See Robert C. Bellafant v. State, No. 01C01-9705-CC-00183, 1998 Tenn. Crim. App. LEXIS 554, 1998 WL 242449, at *6 (Tenn. Crim. App., at Nashville, May 15, 1998), no Tenn. R. App. P. 11 application filed. However, even if the seizure of the evidence provided arguable grounds for a motion to suppress, and his attorney’s failure to file the motion was deficient performance, the Petitioner must demonstrate that he was prejudiced by the deficiency. In order to demonstrate prejudice, the Petitioner would have to prove that the evidence was inadmissible by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).
Wildlife officer had reasonable suspicion for stopping a vehicle on a hunting road near the entrance to a hunting area where the occupants of the vehicle were wearing hunting clothes when stopped. He was found to be DUI. Schlegel v. State Dep’t of Licensing, 153 P.3d 244 (2007).*
From March 8, 2006 post, a case affirmed on appeal to the state supreme court on the same grounds: State v. Bruski, 2007 WI 25, 727 N.W.2d 503 (February 22, 2007). The prior post:
Defendant found nodding off in car behind a store who did not know the name of the registered owner lacked standing. State v. Bruski, 2006 WI App 53, 289 Wis. 2d 704, 711 N.W.2d 679 (App. February 7, 2006) (“Bruski has failed to show that he had an objectively reasonable expectation of privacy in the car. The evidence only shows that he was found in a vehicle he did not own. He offered no evidence as to why he was in the vehicle, or that he had authorization to be in the vehicle. Bruski could not even fully identify the person from whom he had allegedly obtained the vehicle, and he certainly did not have the registered owner’s permission to use the car.” (consent of true owner was not even addressed)).
Affirming, the Wisconsin Supreme Court said:
Related to the vehicle, we conclude that Bruski did not have a reasonable expectation of privacy. His conduct indicates that he did not have an actual expectation of privacy. In his initial conversation with Officer Olson, he indicated that he did not know how he had gotten to his current location. After Ms. Smith and Officer Olson had asked Bruski about the whereabouts of the keys, and Officer Beauchamp entered Ms. Smith’s vehicle to search for the keys, Bruski did nothing to indicate that he expected privacy related to the vehicle. There is not any indication from his conduct that he had an actual expectation of privacy in the vehicle.
Even if Bruski did have an actual expectation of privacy, he still would not have a Fourth Amendment claim. The totality of the circumstances does not support Bruski having a legitimate or justifiable expectation of privacy in Ms. Smith’s vehicle.
First, Bruski had no property interest in the vehicle. His only connections to the vehicle were that he passed out in it and claimed to know the owner’s daughter. The fact that he did not even know Ms. Smith’s daughter’s last name suggests that he did not have any relationship with the owner of the vehicle that would support a conclusion that he had a property interest in Ms. Smith’s vehicle.
Second, Bruski took no precautions customarily associated with those seeking privacy. He did not even know how he had gotten to his current location, let alone taken steps to retain his privacy. Although he argues that parking the car behind a residence constitutes an effort to retain his privacy, this lacks persuasiveness given that he did not even acknowledge being the person to drive the vehicle to that location.
Third, Bruski lacked the right to exclude others from the vehicle. He did not own the vehicle. He did not establish any possessory interest in the vehicle. As mentioned above, but also relevant to this factor, his only connections to the vehicle were that he passed out in it and claimed to know the owner’s daughter. His lack of knowledge about how he got to his current location also undermines his authority to exclude others from the vehicle.
Finally, Bruski’s claim of privacy in Ms. Smith’s vehicle is not consistent with historical notions of privacy. …
