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Sat Nov 14, 2020, 03:50 PM

Kansas Supreme Court: Consent to search can be non-verbal

Source: Associated Press


THE ASSOCIATED PRESS
NOVEMBER 14, 2020 12:36 PM

TOPEKA, KAN.
An individual's conduct can be relevant in determining whether a person has expressed valid consent to search, the Kansas Supreme Court said in a decision reversing a lower court ruling suppressing evidence.

The ruling Friday came in the case of Gianni Massimo Daino, who allowed police to enter his apartment when he opened the door and stood aside for them to come in.

The appeals court reversed a Johnson County District Court ruling suppressing evidence after the warrantless search led to the discovery of marijuana and other incriminating evidence.

The Supreme Court said valid consent requires a showing that an individual freely expressed consent and was not merely acquiescing to lawful authority. It ruled that an individual's nonverbal conduct can be relevant because a person may express valid consent through words, acts, or conduct.

Read more: https://www.fresnobee.com/article247191661.html

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Reply Kansas Supreme Court: Consent to search can be non-verbal (Original post)
Judi Lynn Nov 14 OP
Sneederbunk Nov 14 #1
docgee Nov 14 #11
FarPoint Nov 15 #34
The Mouth Nov 14 #2
soryang Nov 14 #6
SharonClark Nov 14 #7
nycbos Nov 14 #17
Jedi Guy Nov 14 #32
oldsoftie Nov 15 #40
tirebiter Nov 14 #3
qazplm135 Nov 14 #4
Miguelito Loveless Nov 14 #5
demosincebirth Nov 14 #8
docgee Nov 14 #12
Mr.Bill Nov 14 #18
malthaussen Nov 14 #20
greenjar_01 Nov 15 #33
oldsoftie Nov 15 #41
Miguelito Loveless Nov 14 #24
qazplm135 Nov 14 #31
PatrickforO Nov 14 #9
Clearly fogged in Nov 14 #23
Coyote45 Nov 14 #10
safeinOhio Nov 14 #13
soryang Nov 14 #21
safeinOhio Nov 14 #25
soryang Nov 14 #27
safeinOhio Nov 14 #28
soryang Nov 14 #29
safeinOhio Nov 14 #30
reACTIONary Nov 15 #37
reACTIONary Nov 15 #36
soryang Nov 15 #38
marble falls Nov 14 #14
AllaN01Bear Nov 14 #15
angrychair Nov 14 #16
spike jones Nov 14 #22
Mr.Bill Nov 14 #26
Coyote45 Nov 15 #39
malthaussen Nov 14 #19
Harker Nov 15 #35

Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 03:53 PM

1. Does a middle finger constitute refusal?

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Response to Sneederbunk (Reply #1)

Sat Nov 14, 2020, 05:05 PM

11. Yes. Yes it does.

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Response to Sneederbunk (Reply #1)

Sun Nov 15, 2020, 06:44 AM

34. Hahaha

I love you!

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 03:53 PM

2. I've always been told this by lawyer friends

If you don't explicitly and unambiguously deny consent, any murmur or mumble or nod can be construed as a 'yes'

Remember - ALWAYS -
The only things to say to a cop are "Am I free to leave" and if the answer isn't "yes" then ask for your lawyer. They are not your friend, and from the second contact happens anything you say can and will be used against you.

NEVER give consent to search, never tell them anything unless it's to help identify a person who committed a criminal act; if you aren't free to leave treat it as being under arrest and say nothing without checking with your lawyer first. In the words of one lawyer friend anyone who gives consent and/or tries to talk their way out of a possible infraction is a fucking idiot, full stop.

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Response to The Mouth (Reply #2)

Sat Nov 14, 2020, 04:23 PM

6. I'm with you

I won't open the door either. I don't care what their reason is for being on my front door step. They can tell me thru the door, if they have a warrant they can show it. if they have other process they can show it. otherwise the door stays shut. knock and talk is other police state bs for evading the requirement to get a warrant.

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Response to The Mouth (Reply #2)

Sat Nov 14, 2020, 04:28 PM

7. Good advice.

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Response to The Mouth (Reply #2)

Sat Nov 14, 2020, 06:25 PM

17. I'm not a lawyer but I was able to take a Con Law class in college.

My professor more or less used the exact same words.

She said you ask "am I free to leave" and if they say no you ask for a lawyer.

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Response to The Mouth (Reply #2)

Sat Nov 14, 2020, 10:57 PM

32. That's not always the case, at least not in my experience.

Some years ago, I was walking down the hallway in my apartment when, through the sliding glass door, I saw a random dude jump onto my patio. I didn't have long to ponder this before he was rugby tackled by a pursuing cop. Sure enough, the cops knocked on my door a minute later.

I opened the door, and as soon as the cop saw me, her hand immediately dropped to the butt of her gun. She asked me to step outside, so I did. Another cop who was there gestured at my apartment door and asked if I minded if they took a look around. I told them to go for it since I knew they wouldn't need a warrant or my consent to search, anyway. He asked if anyone else was in there, and I told him nope, just the cat. He went in, hallooing and saying, "Police" a few times, then came back out.

The first cop asked me if I had ID, and I told them it was in my office. We went to get it, with her right behind me. I handed over my ID, and they called it in to see if I had warrants. It came back clean, she handed me my ID back, and said they were all set and going to leave. Unable to suppress my curiosity, I asked what this was all about.

Turned out that a few streets over, a dude had flashed a gun and threatened to shoot someone, and then he and another guy who was with him (the gentleman who jumped onto my patio) took off running. He was described as a white male, about 6', shaved head, moustache and goatee, wearing a red t-shirt and jeans. I just so happened to be wearing a red t-shirt and jeans, which explains the reaction the cop had when she first saw me. I thanked them for their time and wished them a good day, and that was that.

I'm pretty sure that if I'd done anything right after opening the door, like moving suddenly or trying to close it, things would have gone sideways pretty fast. Keeping calm, staying polite, and complying when asked to do something by a cop is often a good way to avoid things going sideways, in my experience. Not always, as we've seen demonstrated before, but often.

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Response to Jedi Guy (Reply #32)

Sun Nov 15, 2020, 04:31 PM

40. Good point. You just cant treat all situations as being the same

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 03:57 PM

3. It Can't Happen Here

Who could imagine that they would freak out somewhere
in Kansas,
(Kansas, Kansas, Kansas, Kansas, )
(Kansas, Kansas, do-do-dun to-to
Kansas, Kansas, la la la)
(Kansas, Kansas, do-do-dun to-to
Kansas, Kansas)

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 03:59 PM

4. seems reasonable to me

even as a former Defense Attorney. If you nod and open the door and stand aside after a request to search that's pretty clearly consent.

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Response to qazplm135 (Reply #4)

Sat Nov 14, 2020, 04:22 PM

5. Based on whose testimony?

If they have video of him opening the door, steeping aside and nodding them on, great. If not, the police are hardly credible witnesses, and this has been demonstrated more times than I can recall.

My default position is anything the police say is a lie.

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Response to Miguelito Loveless (Reply #5)

Sat Nov 14, 2020, 04:39 PM

8. I was told years ago that only two people lie

In court, under oath, cops and criminals.

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Response to Miguelito Loveless (Reply #5)

Sat Nov 14, 2020, 05:08 PM

12. That's true. The person should have to sign a document.

He could have said no just as easily and it would still be the police's word against his.

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Response to Miguelito Loveless (Reply #5)

Sat Nov 14, 2020, 06:53 PM

18. Your last sentence

will get you out of jury duty every time.

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Response to Mr.Bill (Reply #18)

Sat Nov 14, 2020, 06:55 PM

20. I know and it has. :)

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Response to malthaussen (Reply #20)

Sun Nov 15, 2020, 01:43 AM

33. Wouldn't it rather be better if you were on the jury, though?

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Response to greenjar_01 (Reply #33)

Sun Nov 15, 2020, 04:33 PM

41. yeah, we all bitch about bad decisions but no one wants to participate in the process.

When i look at some of the juries around here, its scary.

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Response to Mr.Bill (Reply #18)

Sat Nov 14, 2020, 08:49 PM

24. That and I have sued the police

for wrongful death.

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Response to Miguelito Loveless (Reply #5)

Sat Nov 14, 2020, 10:15 PM

31. So you think the defense attorney

wouldn't have made that argument if his client said that the cops were lying? He didn't. His client probably told him what he did and they tried to make the argument that a lack of verbal consent was a bar to search.

They didn't argue "the cops are lying" so I'm going to guess the cops weren't lying.

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 04:41 PM

9. Oh my God! They discovered...marijuana!!!

The whole world is gonna fall apart now.

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Response to PatrickforO (Reply #9)

Sat Nov 14, 2020, 08:10 PM

23. Headline: POT FOUND IN KITCHEN FIRE

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 04:46 PM

10. demosincebirth

As a retired prosecutor i agree to every thing above. it is a frustrating business.

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 05:17 PM

13. I have lots of time and you are paid by the hour.

So, if you have reasonable cause to think I'm breaking the law, I'd be happy to wait for you to get a warrant signed by a judge to search my car or home for what you think I have in my possession and where exactly it is. Other wise, I do not consent. I am a law abiding citizen.

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Response to safeinOhio (Reply #13)

Sat Nov 14, 2020, 07:56 PM

21. during a traffic stop by police for a routine violation based on reasonable suspicion

....your car can be searched without a warrant. there are technical limits on the scope of the search so I wouldn't consent to this search either, even though they will do it anyway without consent.

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Response to soryang (Reply #21)

Sat Nov 14, 2020, 08:52 PM

25. Back in the late 60s I

Was told by a law prof that if stopped by a cop to hold your keys out toward him or her and say that you prefer to not be searched. Not sure if that is still a good idea. One of his reasons was to keep from getting your ass kicked and still have a reasonable case in court.

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Response to safeinOhio (Reply #25)

Sat Nov 14, 2020, 09:06 PM

27. I did some suppression motions many years ago

but I haven't practiced law in years. So I hesitate to give advice because I'm no longer a lawyer and I'm not qualified to do so. I personally am programmed not to offer any resistance to whatever an officer wants to do in a public setting, consent to nothing, offer nothing and say nothing. at home it's different, i won't open a door to an officer without legal process in hand.

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Response to soryang (Reply #27)

Sat Nov 14, 2020, 09:14 PM

28. One never knows how a cop will act.

Lots of variables can come into play. Being older, I try to be at home when the street lights come on.

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Response to safeinOhio (Reply #28)

Sat Nov 14, 2020, 09:29 PM

29. i attended an advocacy course by one of the states most experienced criminal trial lawyers

the point you just made, was the principal point and opening point of his CLE presentation.

They don't care about you, who you are, or what you think your rights are, they are obsessed with dominance and control. At the slightest sign of resistance, you will be the victim of violence, injured, arrested, jailed on trumped up charges of resistance, or worse.

His story told of one of his attorney colleagues who was mistakenly apprehended on suspicion of being a fugitive as he went to his car in the courthouse parking lot where he worked every day. Many if not all of the local police knew who he was. As they seized him, and the lecturer witnessed the whole incident, he resisted his briefcase being taken away, and the officers proceeded to beat the shit of out of him, cuff him, and stuff him, as they say. He sustained a broken bone in the process. The attorney lecture witness attempted to tell the police whom he knew personally that it was a case of mistaken identity, and they told him shut the fuck up, or you're going to jail with him. I don't remember how long he said it was that it took him to be released, not too long, because his friend was one of the mot prominent criminal defense lawyers in the state, but the harm was already done.

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Response to soryang (Reply #29)

Sat Nov 14, 2020, 09:41 PM

30. Never resist and always

file a complaint. For the most part, the brass do not like expensive law suits. If an individuals LEO has lots of complaints his or her life becomes more difficult in most departments.

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Response to safeinOhio (Reply #25)

Sun Nov 15, 2020, 11:12 AM

37. I was told to say that I don't consent, but...

... I don't want any trouble, so, whatever you do, please remember that I did not consent.

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Response to soryang (Reply #21)

Sun Nov 15, 2020, 11:07 AM

36. A long time ago, I was pulled over because of....

.... suspicious behavior in a parking garage. The officers asked to search my car; I refused. They implied I might have to be taken in; I refused. While I was engaged in this exchange with the one, the other was "searching" the car by tossing everything in it out onto the road. They didn't find anything interesting so they left me there to clean up the mess.

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Response to reACTIONary (Reply #36)

Sun Nov 15, 2020, 12:05 PM

38. as an OTR driver for several years

i drove all over the lower 48. In the old southern states, I often saw police or highway patrol doing the same thing almost always to black or hispanic persons on the side of the highway. Ripping the inside of their car or van apart just throwing their property all over the side of the road.

Yes, i would make my refusal to consent explicit too.

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 05:30 PM

14. You step out, lock the door.

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 06:10 PM

15. you have the right to remain silent. if you say anything you give up that right

, if you are taken down town for questioning you have a right to an attorney , if you cant afford one , will be appointed for you . i also understand my right to 5th amendment rights against self incriminaton. do you understand these rights? . quit coddling the poilce .(rgb)

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 06:19 PM

16. Years ago

Like early 90s, I had a friend staying at my apartment because of stuff at his home.
My then girlfriend and I had come back a little early from a trip and apparently my temporary roommate was planning on throwing a party i was not aware of.

Police knocked on my apartment door with 3 kids in tow, who had apparently purchased alcohol illegally.

They were asking for Jon so I said I would get him. I stood in front of the door and shut it, with them outside, as I went to talk to Jon.
He was in the process of trying to flush a half of weed down the toilet, which is not an easy task as weed floats. He was freaking out. FYI, I had no knowledge of this or anything else going on. I had literally only been home less than an hour and had been gone for days.
I took him to the door and told them they could speak to him outside. They agreed.
They had no reason to suspect me of anything and Jon got his parents called ( he was only 18) and got contributing to the delinquency of minors. He went back home that night.

I had the forethought, even in my 20s, to never give consent or allow them in.

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Response to angrychair (Reply #16)

Sat Nov 14, 2020, 08:03 PM

22. helpful hint

Wrap the weed buds in toilet paper then flush.

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Response to spike jones (Reply #22)

Sat Nov 14, 2020, 08:53 PM

26. Or in the context of this thread,

move out of Kansas.

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Response to Mr.Bill (Reply #26)

Sun Nov 15, 2020, 02:10 PM

39. Mr. Bill

that would certainly work for me.

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Response to Judi Lynn (Original post)

Sat Nov 14, 2020, 06:53 PM

19. SSDD

IIRC, there was a relatively recent USSC decision that one can be determined to have waived one's right to silence (contra miranda) if one does not explicitly say "I am exercising my right to remain silent." This sounds like more of the same.

Those amendments in the Bill of Rights were put there to make policing harder, not easier. Because the Founders knew that if you gave the cops an inch, they'd take a friggin' mile.

-- Mal

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Response to Judi Lynn (Original post)

Sun Nov 15, 2020, 08:04 AM

35. A shake's as good as a nod to a blind cop. n/t

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