Category Archives: Abstention

D.Nev.: Omission of CI’s felony conviction and motive to provide information justifies Franks hearing

“As further explained below, because the investigating detective’s omission of a tipster’s felony conviction for an offense bearing on his truthfulness in her affidavit supporting her application for a search warrant that led to the discovery of evidence on that … Continue reading

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4A claims not permitted on habeas

Habeas doesn’t recognize Fourth Amendment claims. In re Lopez, 2019 Cal. LEXIS 8819 (Nov. 20, 2019). This habeas petitioner doesn’t show any likelihood of success to get appointment of counsel or a certificate of appealability. He had an opportunity to … Continue reading

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E.D.Wash.: Def’s Franks claim is barred on habeas where he knew of it all along

Defendant in his 2255 alleges a Franks violation, but he had the ability and method to do it in the district court before conviction and habeas isn’t the place. United States v. Youker, 2019 U.S. Dist. LEXIS 196001 (E.D. Wash. … Continue reading

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TN: Defense counsel’s failure to object to officer’s testimony of def’s confession during suppression hearing violated Simmons but was harmless

Defendant on post-conviction showed that defense counsel’s performance was deficient for not objecting under Simmons to a state investigator’s testimony that he confessed to the crime in his suppression hearing testimony. Defendant, however, can’t show prejudice because of the other … Continue reading

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W.D.Mo.: Officer’s limited knowledge of Spanish still enabled her consent

Defendant claimed a lack of consent due to a language barrier. The court finds one officer was proficient enough in Spanish to effectively communicate the request for consent. United States v. Molina-Lopez, 2019 U.S. Dist. LEXIS 191087 (W.D. Mo. Sept. … Continue reading

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E.D.Va.: Request for consent within 20 seconds of handing over tickets didn’t unreasonably extend stop

A request for consent within 20 seconds of handing the tickets to the defendant did not unreasonably extend the stop. The court finds the consent voluntary. United States v. Perez-Almeida, 2019 U.S. Dist. LEXIS 144705 (E.D. Va. Aug. 26, 2019). … Continue reading

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CA7: After state court affirms denial of motion to suppress, issue preclusion and abstention bar damages suit

Issue preclusion and full faith and credit deny federal courts the ability to determine a Fourth Amendment damages claim in an action after the state court denied suppression. Wade v. Barr, 2019 U.S. App. LEXIS 24723 (7th Cir. Aug. 20, … Continue reading

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CA7: USDC misapplies Heck by assuming challenged search was reasonable

The district court misapplied the Heck doctrine by assuming the search of plaintiff’s car was reasonable. The real question is whether the suit is to challenge the legality of the search. “On remand, the judge will need to resolve the … Continue reading

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CA11: A late discovered search claim doesn’t support a successor 2255 petition

“Wren cannot meet the statutory criteria for filing a second or successive § 2255 motion. First, even assuming that the search warrant is ‘newly discovered’ insofar as it had been sealed, it does nothing to establish by clear and convincing … Continue reading

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CA5: Home visitation and search condition not unreasonable (plain error review)

Defendant challenged his home visitation condition under the Fourth Amendment on appeal without having objected below. It is reviewed for plain error, and it’s certainly not. United States v. Dominguez-Villalobos, 2019 U.S. App. LEXIS 23184 (5th Cir. Aug. 2, 2019).* … Continue reading

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CA8: Not a 4A violation for school resource officer to handcuff sobbing second grader

It was not unreasonable for a school resource officer to handcuff for 15 minutes a 7-year-old sobbing second grader who he suspected of active resistance to going to the principal’s office. Aside from reasonableness, qualified immunity applies because the right … Continue reading

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D.S.C.: Failure to raise excessive force claim within search claim wasn’t IAC

Defense counsel’s failure to raise an excessive force claim as a part of his arrest wasn’t ineffective assistance of counsel on the merits of the arrest or subsequent search. Waters v. United States, 2019 U.S. Dist. LEXIS 128341 (D. S.C. … Continue reading

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