The defendant was asked for consent nine times due to his nonresponsiveness to the officer’s questions. One could be interpreted by some as a command, but not on the totality. State v. Ry, 2007 211 Ore. App. 298, 154 P.3d 724 (2007):
Defendants contend, in related fashion, that Guinto’s consent was coerced unlawfully because the sheer repetition of Bennett’s request made it apparent that “this particular trooper did not intend to relent with his request or release the car or the defendants until the trooper had searched the car to his satisfaction.” Certainly, Bennett showed dogged persistence in trying to obtain consent, and his testimony shows that he intended to remain at the door of the vehicle until defendants consented to a search or a backup officer arrived. Thus, the consent to search was obtained at a time when defendants were not free to leave.
That, however, is hardly dispositive of the voluntariness of consent, given that consent was obtained during the course of a lawful stop. n6 See, e.g., State v. Charlesworth/Parks, 151 Ore. App. 100, 114, 951 P.2d 153 (1997), rev den, 327 Ore. 82, 961 P.2d 216 (1998); State v. White, 130 Ore. App. 289, 291, 881 P.2d 169 (1994). In Charlesworth/Parks, we reversed a trial court’s determination that the defendant’s consent had been involuntary. There, the defendant consented to a search of his car after his car had been lawfully blocked in by a police car and he had been ordered from the car at gunpoint and handcuffed. In holding that the consent to search was voluntary, we noted that the defendant “had considerable experience with the criminal justice system” and that “he knew he had the right to refuse to consent to the search.” Id. at 114.
. . .
Here, the circumstances, when viewed in their totality, were considerably less “coercive” than those in Charlesworth/Parks (where weapons were displayed and the defendant was in handcuffs), White (where the defendant was in handcuffs), and Bea (where the defendant was handcuffed and arrested). In contrast, Guinto consented to the search while sitting, unrestrained, in the car, less than five minutes into a lawful, albeit somewhat stressful, traffic stop. The encounter was beside a public highway during daylight hours, and Bennett’s interaction with defendants was polite–he did not raise his voice, draw a weapon, or employ any threats or promises. He simply requested consent–and then radioed for backup.
. . .
Under the totality of the circumstances, Bennett’s words–however persistent–and actions were not so coercive as to render Guinto’s consent involuntary. We thus affirm the trial court’s determination that the warrantless search of the car and its contents, including the luggage, did not violate Article I, section 9, of the Oregon Constitution [or the Fourth Amendment].
Consent to search defendant’s premises was given by the owner, and there was no indiciation that the owner had no authority to consent to the search as he did. United States v. Mark, 2007 U.S. Dist. LEXIS 17878 (D. V.I. February 23, 2007).*
Officers clearly had probable cause for the search warrant. United States v. Ramos, 2006 U.S. Dist. LEXIS 95668 (D. P.R. August 25, 2006)*:
To mandate an evidentiary hearing, the defendant must submit more than conclusory averments and be supported by more than a mere desire to cross-examine the informant, as the motion to suppress herein attempts. Still, defendant arguments regarding hearsay information should fall on deaf ears since the affidavit in support of the state search warrant describes with detail the personal observations of the law enforcement agent as to activities personally conducted by defendant in front of the residence subject of the search, with particularity as to the dates, time and participants, as well as the activities observed.
Defendants lacked standing to a vehicle because of a lack of connection to it. United States v. Colon-Santiago, 2006 U.S. Dist. LEXIS 95664 (D. P.R. August 7, 2006)*:
As in Aguirre, the record of the suppression hearing in this case is devoid of any proof tending to show that co-defendants Garcia-Rios, Rivera-Lopez and Cedeno-Rodriguez owned or leased the Suzuki Vitara, or that it was registered to them. There was no evidence that they even possessed keys to the vehicle or had used it on prior occasions. Thus, there is no evidence co-defendants Garcia-Rios, Rivera-Lopez and Cedeno-Rodriguez “had exhibited the slightest subjective expectation of privacy vis-a-vis the vehicle.” Aguirre, 839 F.2d at 856. In this case, co-defendants Garcia-Rios, Rivera-Lopez and Cedeno-Rodriguez had ample opportunity at the suppression hearing to demonstrate they enjoyed the requisite standing to savage the search of the car–but failed to do so. We note these defendants also failed to address the standing issue in their written briefs submitted after the evidentiary hearing.
School officials had reasonable suspicion for a search of students for stolen money at a public school. Lindsey v. Caddo Parish School, 954 So. 2d 272 (2d Cir. 2007).*
Tennessee’s Aguilar-Spinelli standard was not met. Basis of knowledge was shown, but reliability of the information was not. State v. Petty, 2007 Tenn. Crim. App. LEXIS 229 (March 8, 2007):
The state’s failure to meet its “reliability” burden could still have been overcome by independent police corroboration. However, the police did not meet the applicable standard in this case. Our courts have held that “observations by police are sufficient if they provide an ‘unusual and inviting explanation,’ even though the observations are ‘as consistent with innocent as with criminal activity.'” Moon, 841 S.W.2d at 341 (quoting Wayne R. LaFave, Search and Seizure, § 3.3(f) at 683 (2d ed. 1987)). Furthermore, the police must corroborate “more than a few minor elements of the informant’s information … especially if the elements relate to non-suspect behavior.” Smotherman, 201 S.W.3d at 664 (citing Moon, 841 S.W.2d at 341)).
Many of the post-Jacumin drug cases in which police corroboration was held sufficient to justify a search warrant involved the police confirming, via one of the senses, drug manufacturing or sale taking place. See generally State v. Carter, 160 S.W.3d 526, 533-34 (Tenn. 2005) (prior to obtaining search warrant for house where methamphetamine was allegedly being made, officer walked [*16] past defendant’s house and smelled burning chemicals and heard persons running around inside); State v. Mark Ray Delashmit, No. W2004-00946-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 592, 2005 WL 1388041 (Tenn. Crim. App. June 13, 2005) (informant wore a wire, which allowed police to hear defendant negotiating drug deal with informant). In the instant case, the police did not independently confirm that the defendant was in possession of drugs before obtaining the warrant; they did not see the defendant selling drugs, nor did they ask an informant to “wear a wire,” as did the informant in Delashmit. The only information that the police were able to independently confirm was the address of the house and the fact that a red pickup truck containing lawn equipment was parked outside. Such information was of the “non-suspect” type that our courts have held insufficient for purposes of independent corroboration under the reliability prong of Aguilar-Spinelli. See generally Smotherman, 201 S.W.3d at 664 (prior to search warrant, police were only able to confirm that defendant resided at house to be searched; Tennessee Supreme Court held that this information “involves only one element of non-suspect behavior and offers little support to the credibility of the informant or the reliability of the informant’s information regarding the occurrence of drug transactions at the defendant’s residence.”). As such, adequate police corroboration of the informant’s information was not present in this case. Absent both police corroboration and a showing that the defendant or his information was reliable, the second prong of the Aguilar-Spinelli test failed in this case, and the search warrant for the defendant’s home should not have been issued.
CONCLUSION
The affidavit in support of the search warrant in this case contained information that established the basis for the informant’s knowledge. However, the second prong of the Aguilar-Spinelli test, which requires either a showing that the informant or his information is reliable or independent corroboration of the informant’s information, was not satisfied. The trial court was correct in suppressing the evidence that resulted from the improperly-issued search warrant; therefore, the judgment of the trial court is affirmed.
