Category Archives: Suppression hearings

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

Posted in Reasonable suspicion, Suppression hearings | Comments Off on E.D.Pa.: Furtive movements and excessive nervousness when stopped was RS

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

Posted in Good faith exception, Reasonableness, Suppression hearings | Comments Off on W.D.N.Y.: No PC for arrest or SW; GFE hearing wasn’t concluded, and it shall now

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

Posted in Consent, Suppression hearings | Comments Off on OH8: State’s losing exhibits from suppression hearing requires new trial

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

Posted in Suppression hearings | Comments Off on D.N.M.: Brady material doesn’t have to be disclosed for suppression hearings

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

Posted in Plain view, feel, smell, Suppression hearings | Comments Off on KY: “Plain smell” is longstanding, derives from plain view, and it won’t be reconsidered

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

Posted in Informant hearsay, Qualified immunity, Suppression hearings | Comments Off on TN: Failure to include the search warrant and affidavit in the record on appeal waives the search issue

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

Posted in Burden of pleading, Burden of proof, Suppression hearings | Comments Off on NY2: Def has right of access to SW affidavit to attempt to controvert it

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

Posted in Burden of pleading, Franks doctrine, Scope of search, Suppression hearings | Comments Off on N.D.Ill.: Franks challenge requires there was a SW

N.D.Ga.: Hearsay is admissible in suppression hearings under Rule 104(a)

Hearsay is specifically admissible in suppression hearings [and issuing search warrants] under Rule 104(a). [After all, that’s how informant hearsay and collective knowledge work.] The court credits one officer as to what another told him in the probable cause for … Continue reading

Posted in Suppression hearings, Tracking warrant | Comments Off on N.D.Ga.: Hearsay is admissible in suppression hearings under Rule 104(a)

GA: Findings and conclusions aren’t always required, and record would be looked to for support

The trial court didn’t make specific findings that defendant consented to the taking of blood for a BAC test. So, the appellate court looks to the record and finds that the evidence supports a finding of consent and denial of … Continue reading

Posted in Cell site location information, Reasonable suspicion, Suppression hearings | Comments Off on GA: Findings and conclusions aren’t always required, and record would be looked to for support

CA8: Stop lacked RS, but the finding of a warrant on def was attenuation under Strieff and search incident was valid

Defendant was known to the officer and directed to stay away from a bus shelter. He was found there and the officer accosted him. The district court found reasonable suspicion to support the seizure of a firearm from his person. … Continue reading

Posted in Attenuation, Search incident, Suppression hearings | Comments Off on CA8: Stop lacked RS, but the finding of a warrant on def was attenuation under Strieff and search incident was valid

W.D.Pa.: Retaining new counsel and attempting to reopen suppression hearing under guise of IAC claim rejected

Defendant retained new counsel and moved to reopen his suppression hearing alleging former counsel was ineffective for not raising a better argument. The motion is denied because this claim doesn’t satisfy the standard for reopening. The issue was available and … Continue reading

Posted in F.R.Crim.P. 41, Good faith exception, GPS / Tracking Data, Suppression hearings | Comments Off on W.D.Pa.: Retaining new counsel and attempting to reopen suppression hearing under guise of IAC claim rejected