Tag: Fourth Amendment
Consent is Fleeting.
by admin on Nov.14, 2008, under Expunge and Seal
Interesting case on consent coming out of the First District.
Facts: The appellant is a passenger in a car. The car is pulled over. The appellant gives consent to a search of his person. Appellant then tries to exit the car before the search has taken place. The police officer says “sit tight,” and orders Appellant to remain in the car. Subsequent search of appeallant reveals cocaine.
What happens to the initial consent? Is it still valid? First District says “no.” The previous consent is now presumed to be invalid and involuntary.
“It is reasonable that consent can be rendered invalid or effectively withdrawn, by intervening unlawful police conduct. This would be especially true when the unlawful conduct involves a violation of the Fourth Amendment rights of an individual whose previously granted consent is all law enforcement has to justify the search.”
In applying that principle, the First District held that the illegal detention (post consent) created a taint of an involuntary search that the State could not overcome.
I agree with this holding although I don’t think it will help law enforcement be better on the street when it comes to searches and seizures. I’m sure the officer has no idea why the evidence was suppressed. Of course the key issue here was the illegal detainment. There was no reason to keep the appellant in the car because the officer had witness no crime taking place. Once the appellant was ordered to sit still, it stands to reason he no longer wanted officer to search his person.
3rd v. 4th DCA: Jardines vs. Rabb
by admin on Nov.07, 2008, under Expunge and Seal
Interesting Search and Seizure conflict between the 3rd and 4th DCAs.
The issue is the use of drug-sniffing dogs to search for drugs when all the officer has is a anonymous tip on which to go on. Is the dog sniff a search? Does it infringe on a person’s right to privacy as in Kyllo (use of infra-red sensing equipment to scan houses for heat signatures)?
4th DCA (Rabb): Dog sniff is a search because a dog, like a therma imager, is sense-enhancing technology to intrude into constitutionally-protected area of the defendant’s house.
Not so, says the 3rd DCA (Jardines): A canine sniff is not a Fourth Amendment search. A dog’s nose is not a “device” nor is it sense-enhancing technology. A dog alerts to only illegal activity, so if the dog is legally present at the house and alerts to drugs, then the sniff is not a search under the 4th Amd.
The 3rd DCA adopted the dissent’s view in Rabb and certified a direct conflict. Now on to the Supremes to figure this one out. If I were a betting man, I’d go w/ the 4th DCA on this one.
