consent defense in Georgia

2019Because her consent to the blood test was premised on inaccurate information as to the consequences of refusing consent, we reverse the trial court's judgment. "[O]n a motion to suppress, the State has the burden of proving that a search was lawful." (Punctuation and footnote omitted.) State v. Hammond , 313 Ga. App. 882 , 883-884, 723 S.E.2d 89 (2012) Thus, "when relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances." (Citation and punctuation omitted) Williams v. S

2019Because her consent to the blood test was premised on inaccurate information as to the consequences of refusing consent, we reverse the trial court's judgment. "[O]n a motion to suppress, the State has the burden of proving that a search was lawful." (Punctuation and footnote omitted.) State v. Hammond , 313 Ga. App. 882 , 883-884, 723 S.E.2d 89 (2012) Thus, "when relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances." (Citation and punctuation omitted) Williams v. S

2018See Williams , 296 Ga. at 821 , 771 S.E.2d 373 ("the natural metabolization of alcohol in a person's bloodstream [does not] constitute[ ] an exigency justifying an exception to the fourth amendment's search warrant requirement for nonconsensual blood testing and all DUI cases"), citing Missouri v. McNeely , 569 U.S. 141 , ( 133 S.Ct. 1552 , 185 LE2d 696 ); Schneckloth v. Bustamonte , 412 U.S. 218 , 228 (II) (B), 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973) (for a warrantless search to be valid under the consent exception, that consent may not be "coerced, by explicit or implicit means, by implied thr

2018See Williams , 296 Ga. at 821 , 771 S.E.2d 373 ("the natural metabolization of alcohol in a person's bloodstream [does not] constitute[ ] an exigency justifying an exception to the fourth amendment's search warrant requirement for nonconsensual blood testing and all DUI cases"), citing Missouri v. McNeely , 569 U.S. 141 , ( 133 S.Ct. 1552 , 185 LE2d 696 ); Schneckloth v. Bustamonte , 412 U.S. 218 , 228 (II) (B), 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973) (for a warrantless search to be valid under the consent exception, that consent may not be "coerced, by explicit or implicit means, by implied thr

2023Marlow v. State, 337 Ga. App. 1, 4 (1) (b) ( 785 SE2d 583 ) (2016) (citations and punctuation omitted), overruled on other grounds by Quiller v. State, 338 Ga. App. 206 , 209 n.3 ( 789 SE2d 391 ) (2016).

2023Marlow v. State, 337 Ga. App. 1, 4 (1) (b) ( 785 SE2d 583 ) (2016) (citations and punctuation omitted), overruled on other grounds by Quiller v. State, 338 Ga. App. 206 , 209 n.3 ( 789 SE2d 391 ) (2016).

2016Thus, “[w]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” (Citations and punctuation omitted.) Cooper, 277 Ga. at 291 (VI).

2015Williams, 296 Ga. at 821 (“'[w]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances’ ”), quoting Cooper v. State, 277 Ga. 282, 291 (VI) ( 587 SE2d 605 ) (2003).

2012See Felker v. State, 252 Ga. 351, 363 (1) (c) ( 314 SE2d 621 ) (1984).

2012See Felker v. State, 252 Ga. 351, 363 (1) (c) ( 314 SE2d 621 ) (1984).

2003Raulerson v. State, 268 Ga. 623, 625 (2) (a) ( 491 SE2d 791 ) (1997).

2003Raulerson v. State, 268 Ga. 623, 625 (2) (a) ( 491 SE2d 791 ) (1997).

2018Thus, by reading the plain language of these two statutes in context with each other, as we must, see Hendry v. Hendry , 292 Ga. 1 , 3, 734 S.E.2d 46 (2012), it becomes apparent that they address two separate situations: one in which the legislature allows a franchisor to reject a proposed change or sale on the grounds that the transferee is unfit or unqualified without the franchisor being required to compensate the original parties; and one where the franchisor is allowed to substitute itself into an ongoing transaction but required to compensate the original parties in a specified manner.

2018Thus, by reading the plain language of these two statutes in context with each other, as we must, see Hendry v. Hendry , 292 Ga. 1 , 3, 734 S.E.2d 46 (2012), it becomes apparent that they address two separate situations: one in which the legislature allows a franchisor to reject a proposed change or sale on the grounds that the transferee is unfit or unqualified without the franchisor being required to compensate the original parties; and one where the franchisor is allowed to substitute itself into an ongoing transaction but required to compensate the original parties in a specified manner.

2018Motors Corp., 215 F3d 386, 390 (3d Cir. 2000) (Under analogous Pennsylvania law, “[b]oth a right of first refusal and a consent requirement provide a mechanism by which the franchisor can control the selection of its franchisees, but a right of first refusal is a less restrictive form of control, as it requires that the franchisor match the terms offered for the franchise by the third party.”).

2018Motors Corp. , 215 F.3d 386 , 390 (3d Cir. 2000) (Under analogous Pennsylvania law, "[b]oth a right of first refusal and a consent requirement provide a mechanism by which the franchisor can control the selection of its franchisees, but a right of first refusal is a less restrictive form of control, as it requires that the franchisor match the terms offered for the franchise by the third party.").

2018See Williams , 296 Ga. at 821 , 771 S.E.2d 373 ("the natural metabolization of alcohol in a person's bloodstream [does not] constitute[ ] an exigency justifying an exception to the fourth amendment's search warrant requirement for nonconsensual blood testing and all DUI cases"), citing Missouri v. McNeely , 569 U.S. 141 , ( 133 S.Ct. 1552 , 185 LE2d 696 ); Schneckloth v. Bustamonte , 412 U.S. 218 , 228 (II) (B), 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973) (for a warrantless search to be valid under the consent exception, that consent may not be "coerced, by explicit or implicit means, by implied thr

2018See Williams , 296 Ga. at 821 , 771 S.E.2d 373 ("the natural metabolization of alcohol in a person's bloodstream [does not] constitute[ ] an exigency justifying an exception to the fourth amendment's search warrant requirement for nonconsensual blood testing and all DUI cases"), citing Missouri v. McNeely , 569 U.S. 141 , ( 133 S.Ct. 1552 , 185 LE2d 696 ); Schneckloth v. Bustamonte , 412 U.S. 218 , 228 (II) (B), 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973) (for a warrantless search to be valid under the consent exception, that consent may not be "coerced, by explicit or implicit means, by implied thr

2024And this Court has held that the trial court is “not required to hold a hearing on the petition in this circumstance.” White, 302 Ga. at 70 (2).

2024And this Court has held that the trial court is “not required to hold a hearing on the petition in this circumstance.” White, 302 Ga. at 70 (2).

2023Next, with respect to the trial court’s characterization of Person 2’s testimony as “inherently confusing” because she dated Ippisch after the initial alleged assault, 16 See generally Olds v. State, 299 Ga. 65, 69 (2) ( 786 SE2d 633 ) (2016) (“Many provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when we consider the meaning of these provisions, we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit.”). 17 (Citations and punctua

2023Next, with respect to the trial court’s characterization of Person 2’s testimony as “inherently confusing” because she dated Ippisch after the initial alleged assault, 16 See generally Olds v. State, 299 Ga. 65, 69 (2) ( 786 SE2d 633 ) (2016) (“Many provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when we consider the meaning of these provisions, we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit.”). 17 (Citations and punctua

2020See Olevik, supra; Elliott, supra; Kallon, supra; Melton, supra; Fofanah, supra. Here, the trial court focused solely on the misleading nature of the implied consent warning.2 In so doing, the trial court ignored the Supreme Court’s holding in Olevik that, “[i]n determining voluntariness, no single factor is controlling.” Olevik, 302 Ga. at 251 (3) (b).

2020See Hendrix v. State, 298 Ga. 60, 62-63 (2) (a) ( 779 SE2d 322 ) (2015) (“An attorney’s decision about which defense to present is a question of trial strategy.

2020See Hendrix v. State, 298 Ga. 60, 62-63 (2) (a) ( 779 SE2d 322 ) (2015) (“An attorney’s decision about which defense to present is a question of trial strategy.

2018See Byrd v. Hopson , 265 F.Supp.2d 594 , 608 (III) (D) (W.

2016“A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Cuaresma v. State, 292 Ga. App. 43, 47 (2) ( 663 SE2d 396 ) (2008).

2016“A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Cuaresma v. State, 292 Ga. App. 43, 47 (2) ( 663 SE2d 396 ) (2008).

2015We emphasized such remaining question in regard to the validity of the consent, confirming that “[w]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” Cooper v. State, supra at 291 (VI), citing, inter alia, Bumper v. North Carolina, 391 U. S. 543 ( 88 SCt 1788 , 20 LE2d 797) (1968).9 And, it can certainly be argued that the need for 9 In Cornwell v. State, 283 Ga. 247 ( 657 SE2d 195 ) (2008), this Court stated that inasmuch as there was probable cause for Co

2015We emphasized such remaining question in regard to the validity of the consent, confirming that “[w]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” Cooper v. State, supra at 291 (VI), citing, inter alia, Bumper v. North Carolina, 391 U. S. 543 ( 88 SCt 1788 , 20 LE2d 797) (1968).9 And, it can certainly be argued that the need for 9 In Cornwell v. State, 283 Ga. 247 ( 657 SE2d 195 ) (2008), this Court stated that inasmuch as there was probable cause for Co

2015Thus, “the construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” (Citations and punctuation omitted.) Cohen v. Sandy Springs Crossing Assocs., L.P., 238 Ga. App. 711, 712-713 ( 520 SE2d 17 ) (1999).

2015Thus, “the construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” (Citations and punctuation omitted.) Cohen v. Sandy Springs Crossing Assocs., L.P., 238 Ga. App. 711, 712-713 ( 520 SE2d 17 ) (1999).

2015Cf. Lambert v. State, 287 Ga. 774, 776 (2) ( 700 SE2d 354 ) (2010) (despite presenting legally invalid coercion defense to murder charge, trial counsel was not ineffective where trial counsel was constrained by defendant’s admission that he committed fatal beating). 3.

2015Cf. Lambert v. State, 287 Ga. 774, 776 (2) ( 700 SE2d 354 ) (2010) (despite presenting legally invalid coercion defense to murder charge, trial counsel was not ineffective where trial counsel was constrained by defendant’s admission that he committed fatal beating). 3.

2015The consent requirement, as asserted by Donald, is thus wholly consistent with existing law in that without the express coiisent of the nonborrowing brother, the property would not be automatically pledged to secure the debt of the borrowing brother. 8 Additionally, “[t]he parties’ interpretation is entitled to great, if not controlling, influence, and will generally be adopted and followed by the courts, particularly when the parties’ interpretation is made before any controversy, or when the construction of one party is against his interest.” (Citations and punctuation omitted.) Anderson v.

2015The consent requirement, as asserted by Donald, is thus wholly consistent with existing law in that without the express coiisent of the nonborrowing brother, the property would not be automatically pledged to secure the debt of the borrowing brother. 8 Additionally, “[t]he parties’ interpretation is entitled to great, if not controlling, influence, and will generally be adopted and followed by the courts, particularly when the parties’ interpretation is made before any controversy, or when the construction of one party is against his interest.” (Citations and punctuation omitted.) Anderson v.

2014Segrest, supra at 589-590 (2).

2010It was only in a discussion on the seizure of appellant’s clothing from his sister’s washing machine that the trial court mentioned its belief that had the clothing been worn by a suspect at the time of arrest, it could be seized incident to the arrest of the suspect. 3 Even if appellant could be deemed to have been a joint tenant or co-occupant of his sister’s home, in the absence of evidence that appellant expressly objected to the search or that police removed him from the house for the sake of avoiding his possible objection (Georgia v. Randolph, 547 U. S. 103, 121-122 (126 SC 1515, 164 LE