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State v. Tucker12/21/2001
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, will be upheld unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.
2. Search and Seizure. Voluntariness of consent to search is a question of fact to be determined from all the circumstances.
3. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. The standard for measuring the scope of a suspect's consent under the Fourth Amendment to the U.S. Constitution is that of objective reasonableness: What would the typical reasonable person have understood by the exchange between the officer and the suspect?
4. Search and Seizure. Whether there were any limitations placed on the consent given and whether the search conformed to those limitations is a question of fact to be determined by the totality of the circumstances.
5. Sentences: Appeal and Error. An appellate court will not disturb sentences that are within statutory limits unless the district court abused its discretion in establishing the sentences.
6. Constitutional Law: Search and Seizure. It is well settled under the Fourth Amendment that warrantless searches and seizures are per se unreasonable, subject to a few specifically established and well-delineated exceptions—one being a search undertaken with consent.
7. Constitutional Law: Search and Seizure: Duress. To be effective under the Fourth Amendment, consent to a search must be a free and unconstrained choice and not the product of a will overborne. Consent must be given voluntarily and not as the result of duress or coercion, whether express, implied, physical, or psychological.
8. Search and Seizure. Mere submission to authority is insufficient to establish consent to a search.
9. Search and Seizure: Police Officers and Sheriffs: Warrants. In situations where the searching officer has stated that he could obtain or was in the process of getting a warrant, the courts have never found such a statement coercive per se. Rather, the courts have generally looked at the statement made by the officer to determine if it was coercive in the particular factual situation.
10. ____: ____: ____. A statement of a law enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute coercion.
11. Search and Seizure. A search of a home that is made pursuant to consent may not exceed the scope of consent.
12. Search and Seizure: Police Officers and Sheriffs. Recitation of magic words is unnecessary to give consent to a search. The key inquiry focuses on what the typical reasonable person would have understood by the exchange between the officer and the suspect.
13. Sentences: Appeal and Error. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.
14. Sentences. In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in
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