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FL4: Comment on refusal of consent violated Fourth Amendment, but was harmless

By John Wesley Hall, Jr.

Prosecutor’s comment in opening statement about defendant’s refusal of consent violated the Fourth Amendment, but it was harmless. Fratcher v. State, 2010 Fla. App. LEXIS 7314 (Fla. App. 4DCA May 26, 2010): In this appeal, Fratcher complains of the following comment the prosecutor made during her opening statement: The police get there. Fratcher opens the door and they place him under arrest. He immediately--the officer, you hear Detective McNally ... say, can I search your truck. No, you can't search my truck. We believe that, under Gomez [v. State, 572 So. 2d 952, 953 (Fla. 5th DCA 1990)], the trial judge abused his discretion in overruling Fratcher's objection to this comment. While the prosecutor did not make the comment in a closing argument--so that it was not tinged with the argumentative character that made the Kearney comments so harmful--it was made as part of a narrative retelling of the facts, as was the impermissible comment in Gomez...continue to full post

Full post as published by Fourth Amendment on May 29, 2010 (boomark / email).