State v. Woinarowicz

[¶ 36] I agree with the majority that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), does not apply to preliminary hearings. I write separately to note that an utterance of a consent to search is a verbal act, and is not hearsay.

[¶ 37] “A verbal act is an utterance of an operative fact that gives rise to legal consequences.” 5 Weinstein’s Federal Evidence § 801.11[3] (2d ed.2006).

[¶ 38] In U.S. v. Moreno, 233 F.3d 937, 940 (7th Cir.2000), holding that the “utterance of consent to the search, and [the] subsequent retraction, amount to verbal acts, and as such are…