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The post below was published on Tuesday, January 18th, 2011 at 8:40 AM.

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Fourth District: Curious Consent A Cause For Concern

As a young law clerk, I recall being surprised by the number of search and seizure cases involving defendants who were found to have implicated themselves — either by agreeing to a search that revealed contraband or somehow dispossessing themselves of contraband in an officer’s plain view. The officer’s testimony inevitably constituted substantial competent evidence, and if the trial court relied on that testimony and believed the officer, then the appellate court would affirm the order denying the defendant’s motion to suppress.

After all, trial courts weigh testimony, and appellate courts cannot reweigh it.

In this decision, the Fourth District offered some more expansive observations along these lines. The court affirmed a trial court’s denial of a motion to suppress under circumstances that were, in the appellate court’s view, “unbelievable.”

The court explained that the burden here falls on trial judges to protect the integrity of the judiciary and the criminal justice system.

The decision was not openly critical of the trial court’s ruling but used the occasion to urge trial judges to perform “an unbiased and objective evaluation of testimony” so judges will not “devolve into rubber stamps for law enforcement.”

The court ended its decision by emphasizing its concern with the number of cases involving consent findings under “curious circumstances.”

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