Category Archives: Suppression hearings

AZ: Offer of proof would be helpful for Franks claim, and def didn’t make one here

“As noted above, however, some of these alleged omissions and misstatements are simply not supported by the record. And, the omissions that are supported by the record were not material given the strength of the evidence supporting a finding of … Continue reading

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IA: Answering statement officer was coming in with a question was acquiescence

The state conceded that hot pursuit didn’t justify their entry and relied on consent. “Nor could Boley’s act of letting the officers in be construed as consent. When the officer said she would be coming in, Boley responded with a … Continue reading

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AZ: Ex parte order in 2013 for CSLI showed PC and was constitutionally sufficient and it would be served in NJ

An ex parte court order for CSLI five years before Carpenter, and probable cause was shown. It was the functional equivalent of a search warrant. It also could be served on T-Mobile in New Jersey. State v. Conner, 2020 Ariz. … Continue reading

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OH10: Lack of findings of fact and conclusions of law on grant of suppression motion requires remand to make them

The trial court’s grant of suppression is reversed and remanded because of its inadequate findings of fact and conclusions of law for appellate review. State v. Peeks, 2020-Ohio-889, 2020 Ohio App. LEXIS 812 (10th Dist. Mar. 10, 2020). Defendant officers … Continue reading

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N.D.Miss.: Issuing USMJ can’t be subpoenaed to testify to mental impressions in issuing SW

Defendant doesn’t get to subpoena the issuing magistrates for the search warrant because their mental impressions are irrelevant and whether a telephonic warrant was avoidable by essentially shopping for a different judge. Nevertheless, the issue is held in abeyance since … Continue reading

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OH2: Hearsay is admissible in a suppression hearing, and the trial court erred in sustaining the state’s objection to hearsay, but it was harmless on the totality

The state objected to hearsay to a defense question at the suppression hearing, but hearsay is admissible in suppression hearings under Rule 104(a). Here, however, it was harmless error. The lack of prejudice thus results in there being no ineffective … Continue reading

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Law.com: Analysis: Reopening Suppression Hearings: The Trilogy Is Complete

Law.com: Analysis: Reopening Suppression Hearings: The Trilogy Is Complete (“In his Criminal Law and Procedure column, Barry Kamins discusses a recent decision, ‘People v. Cook’, which is the last of a trilogy of decisions that began over 40 years ago, … Continue reading

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D.N.J.: What witnesses to call at a suppression hearing is strategic call under Strickland

Defendant wasn’t prejudiced by not calling his codefendant wife at the suppression hearing. Her declaration was already before the court, and nothing more could be added. What witnesses to call, even in a suppression hearing, is a Strickland strategic decision. … Continue reading

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E.D.Pa.: Furtive movements and excessive nervousness when stopped was RS

Defendant’s furtive movements while driving and nervousness after the stop justified extending the stop for fear there might be a weapon. United States v. Miller, 2019 U.S. Dist. LEXIS 224424 (E.D. Mo. Dec. 4, 2019).* The odor of alcohol, fumbling … Continue reading

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W.D.N.Y.: No PC for arrest or SW; GFE hearing wasn’t concluded, and it shall now

The defendant’s arrest on this thin claim from an unproven and unreliable CI was without probable cause, and the search of his person is suppressed. The search warrant was also issued without probable cause, but the part of the hearing … Continue reading

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OH8: State’s losing exhibits from suppression hearing requires new trial

Appellant appeals the denial of his suppression motion, but a bunch of the exhibits are missing. The state relies on precedent that it’s the appellant’s obligation to bring up a record. The state, however, somehow got Exhibits 1-23 back and … Continue reading

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D.N.M.: Brady material doesn’t have to be disclosed for suppression hearings

Brady material doesn’t have to be disclosed for suppression hearings. [How does this fit with the ethical obligation to not present false evidence? See Model Rules 3.3 & 3.4. Brady material might not make a difference in suppression hearing; then, … Continue reading

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KY: “Plain smell” is longstanding, derives from plain view, and it won’t be reconsidered

The “plain smell” doctrine is longstanding, derives from plain view, and this court declines to resubmit the case for en banc review to reconsider it in the context of smell of marijuana in the car extending to the person in … Continue reading

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TN: Failure to include the search warrant and affidavit in the record on appeal waives the search issue

Failure to include the search warrant and affidavit in the record on appeal waives the search issue. State v. Parks, 2019 Tenn. Crim. App. LEXIS 740 (Nov. 13, 2019). The officer gets qualified immunity because there was probable cause for … Continue reading

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NY2: Def has right of access to SW affidavit to attempt to controvert it

Defendant filed his motion to suppress in the blind because didn’t have access to the affidavit for the search warrant. It was denied without a hearing. Remanded: He gets to see it to try to controvert it. People v. Lambey, … Continue reading

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N.D.Ill.: Franks challenge requires there was a SW

Defense counsel wasn’t ineffective for not seeking a Franks hearing where there was no search warrant in the first place. Freeman v. United States, 2019 U.S. Dist. LEXIS 187171 (N.D. Ill. Oct. 29, 2019). Defendant’s general consent to search a … Continue reading

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