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11/6/2015
Federal Court Emphasizes Right To Withdraw Search Consent
US Court of Appeals for the Fourth Circuit tells police that motorists have the right to withdraw consent from a vehicle search.

Credit card reader
When a motorist gives consent to a vehicle search during a traffic stop, that consent can be withdrawn. The Fourth Circuit US Court of Appeals last month decided to emphasize this point by ruling against the police officers who ignored Dmytro Patiutka when he told them to stop searching his SUV.

Virginia State Trooper G.S. Cox pulled Patiutka over on Interstate 81 on April 27, 2013, because his SUV had a tinted license plate cover. After unsuccessfully running Patiutka's Lithuanian driver's license through the police database, Trooper Cox gave the man a verbal warning about the tint and told him he was free to go.

When Trooper Cox said those words, he actually did not mean Patiutka could leave. Instead, he pressured the man to answer "a couple of questions real quick." Five more troopers arrived on the scene, and they were given a green light to search the SUV. The search uncovered a credit card reader and four brand new iPads. Patiutka asked why the officers were rifling through his belongings.

"I asked you could I search your car," Trooper Cox said.

"No. Close the car," Patiutka insisted.

At this point, Trooper Cox decided to place Patiutka in handcuffs as part of an investigative detention because of his potential involvement in criminal activity. The search continued for 50 minutes. This turned up additional machines and material used to make credit cards. Patiutka was charged with identity theft, but he appealed on the grounds that the search violated the Fourth Amendment's requirement to obtain a search warrant. The three-judge appellate panel agreed.

"Probable cause did not exist for the officers to arrest Patiutka for any offense at the moment he revoked consent," Judge Diana Gribbon Motz wrote for the court. "The absence of probable cause to arrest Patiutka for any offense at the moment Trooper Moore decided to continue the search without Patiutk's consent renders the search incident to arrest exception inapplicable here."

The trial judge did not find the testimony of Trooper Cox particularly credible, and none of the judges were persuaded that the iPads and credit card reader found during the consent search were clear evidence of criminality.

"Innocuous explanations for a driver's possession of these items abound," Judge Motz wrote. "For example, many small business owners now utilize iPads with attached credit card readers in lieu of traditional point-of-sale systems. To be sure, that is not how Patiutka intended to employ the iPads, but neither Trooper Moore nor any of the officers present asked Patiutka about the items."

The judges ordered the evidence against Patiutka suppressed. A copy of the ruling is available in a 40k PDF file at the source link below.

Source: PDF File US v. Patiutka (US Court of Appeals, Fourth Circuit, 10/23/2015)



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