{"id":51746,"date":"2022-03-07T03:07:00","date_gmt":"2022-03-07T08:07:00","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=51746"},"modified":"2022-03-07T11:04:06","modified_gmt":"2022-03-07T16:04:06","slug":"tx3-def-pulling-away-from-officer-did-not-consent-to-frisk-of-his-person","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=51746","title":{"rendered":"TX3: Def pulling away from officer did not consent to frisk of his person"},"content":{"rendered":"\n

The trial court could not conclude defendant consented to the frisk of his person. He was never asked for consent, and all his actions when the frisk was attempted in pulling away from the officer showed a lack of consent. Massey v. State<\/a>, 2022 Tex. App. LEXIS 1521 (Tex. App. \u2013 Ft. Worth Mar. 3, 2022) (substituted op. on rehearing).<\/p>\n\n\n\n

Defendant was stopped on a report of a hit-and-run involving a Raptor pickup truck. The officer headed to where it was going, saw it coming, and stopped it. Defendant had no standing in the truck, and his phone was ultimately subjected to an unreasonable search, but the good faith exception applies, \u201calbeit by a thin margin.\u201d \u201cAs to the phone, the warrant is invalid. The scope of the search was acceptable; the scope of the seizure was not. There was no substantial basis for the magistrate to find probable cause that the phone was permeated with fraud, so the warrant’s authorization to seize the entire contents of the phone ran afoul of the Fourth Amendment. Despite the warrant’s deficiency, reliance upon it was not entirely unreasonable, as it must be to justify the \u2018extreme sanction of exclusion.\u2019 See Leon, 468 U.S. at 926.\u201d United States v. Almonte, 2022 U.S. Dist. LEXIS 38684 (W.D.W.Va. Mar. 4, 2022).*<\/p>\n","protected":false},"excerpt":{"rendered":"

The trial court could not conclude defendant consented to the frisk of his person. He was never asked for consent, and all his actions when the frisk was attempted in pulling away from the officer showed a lack of consent. … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,34],"tags":[],"class_list":["post-51746","post","type-post","status-publish","format-standard","hentry","category-good-faith-exception","category-standing"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/51746","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=51746"}],"version-history":[{"count":2,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/51746\/revisions"}],"predecessor-version":[{"id":51755,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/51746\/revisions\/51755"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=51746"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=51746"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=51746"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}