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Probable Cause – Seizure of Personal Property

State v. Wilson J. Behling, 2011AP483-CR, District 3, 10/18/11

court of appeals decision (1-judge, not for publication); for Behling: John M. Carroll; case activity

Probable cause that Behling’s backpack contained contraband supported its seizure so that a warrant could be obtained and the item searched:

¶28      We conclude Hoffman had probable cause to believe Behling’s backpack contained contraband or evidence of a crime.  Here, Hoffman’s seizure was based on the following facts: (1) Behling entered a county park where drug activity has occurred; (2) Behling drove next to another motorcycle for a short distance; (3) both motorcycles drove down to a secluded spot on the river; (4) Hoffman’s training and experience as a drug investigator provided him with the knowledge that covert drug transactions occur in secluded locations; (5) Hoffman observed Behling and Verhein talking; (6) Behling put his backpack down away from himself before approaching Hoffman; (7) Hoffman’s training and experience provided him with the knowledge that an individual who has contraband usually attempts to distance himself from the contraband; (8) Behling appeared nervous; (9) Behling consented to a search of his backpack but subsequently revoked his consent when Hoffman wanted to look in a specific pocket; and (10) Behling fumbled with his backpack.

A typically fact-specific search-and-seizure case. Still, one might wonder whether refusal to (more concretely, rescission of) consent to search is a permissible variable in the probable cause variable. You have the right not to consent to search … but exercising that right suggests your guilt. Doesn’t quite seem right. Nonetheless, the existence of plenty of other factors makes this one a mere curiosity.

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