CRIMINAL – CONSENT SEARCH: WILSON V. COM. (COA 7/6/2007)

WILSON V. COM.
CRIMINAL: CONSENT SEARCH
2006-CA-000491
PUBLISHED: REVERSING AND REMANDING
PANEL: KELLER PRESIDING; COMBS CONCURS; BUCKINGHAM DISSENTS
COUNTY: HENDERSON
DATE RENDERED: 7/6/2007

In 2-1 decision, CA reversed TC’s denial of Defendant’s motion to suppress evidence seized following his alleged consent to search.

The circuit court relied solely upon the testimony of Det. Conley in reaching the conclusion that Wilson consented to a search of the entire building. However, the evidence does not support this conclusion. First, although Wilson gave at least a limited consent to search the building, there were no exigent circumstances (such as an odor emanating from a possible meth lab) necessitating an immediate search while he was on his way back from his business trip. Certainly there were no circumstances that would justify scaling a wall to obtain access to Wilson’s personal space upstairs. Second, there was no other proof or confirmation regarding the scope of Wilson’s consent, either from another police officer or from a signed consent form. Third, if Wilson had consented to a search of the entire building over the telephone, there would have been no need for Det. Conley to obtain a search warrant once they found the suspected drugs and paraphernalia in the cigar box in Wilson’s living area. While Det. Conley testified that consent is sometimes withdrawn, necessitating a search warrant, it is undisputed that Wilson was not there to withdraw his consent. Therefore, there was no need to seek a warrant at that particular time. The Commonwealth’s argument that Wilson was cooperative upon his return has no bearing on the extent of his initial consent, as the police had obtained a warrant by that time and Wilson was complying with the terms of the warrant.

Based upon the totality of the circumstances, it is clear that the Commonwealth did not prove by a preponderance of the evidence that Det. Conley obtained a valid consent to search the entire building. It is this Court’s belief that the warrantless search of Wilson’s living area was conducted without his consent and therefore the evidence obtained during that search must be excluded as fruit of the poisonous tree.

Note: This is a surprising decision in that a majority of the CA appears to have decided that the testifying officer lied about receiving consent to search the entire building. Normally, a police officer wins any "he said she said" battle with a defendant. 

By Scott Byrd @ www.OlginandByrd.com

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