{"id":6212,"date":"2012-05-28T20:46:04","date_gmt":"2011-10-31T07:45:51","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-10-31T07:41:14","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=6212","title":{"rendered":"NY2: Leafing through a notebook was improper as an inventory, and it was not plain view"},"content":{"rendered":"

Defendant\u2019s car was impounded, and the officer searched the car to \u201cleaf through notebooks located in the back seat [and this] was an unjustified unconstitutional search.\u201d \u201cFurther, the plain view doctrine does not apply, because the incriminating character of the notebooks was not immediately apparent.\u201d People v Perez<\/a>, 2011 NY Slip Op 7659, 88 A.D.3d 1016, 931 N.Y.S.2d 411 (2d Dept. 2011).*<\/p>\n

Defendant had a reasonable expectation of privacy in his backyard and back steps, even though the yard was not fenced or posted with a no trespassing sign, because the property was in a secluded area, there were no neighbors within several hundred yards, and the yard was not visible from the road, driveway, or other properties. The warrantless entry into the curtilage was not justified because officers did not have probable cause to believe the instrumentality of a crime or evidence of a crime would be discovered, and even if there was probable cause, there were not exigent circumstances such that obtaining a warrant was impracticable. Finally, defendant’s consent to a search after the illegal entry into the curtilage was not valid because the taint was not sufficiently attenuated: the consent was given within minutes of the entry; the entry resulted in an officer observing marijuana; defendant did not volunteer his consent; and the officer did not tell defendant he could decline the request. Cooksey v. State<\/a>, 350 S.W.3d 177 (Tex. App.\u2014San Antonio 2011).<\/p>\n

On a GVR in light of Davis, the court follows Davis and holds that a pre-Gant search is governed by good faith. Valesquez v. Commonwealth<\/a>, 362 S.W.3d 346 (Ky. App. 2011).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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