Category Archives: Waiver

D.Kan.: Not responding to govt’s 4A alternative arguments de facto waiver

The government’s alterative theories to support the search were sufficient to avoid even deciding a good faith mistake of fact by the officers. Moreover, defendant never addressed the government’s alternative arguments in his briefing. United States v. Bell-Johnson, 2023 U.S. … Continue reading

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HI: Miranda warnings required whenever PC develops for arrest

“Miranda warnings are required by article I, section 10 of the Constitution of the State of Hawai’i when probable cause to arrest has developed. And in Hewitt’s case, contrary to the ICA’s conclusion, probable cause had developed before she was … Continue reading

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CA1: Waiver of 4A claim in lower court is waiver for appeal

Defendant explicitly waived his Fourth Amendment claim in the district court, so he can’t appeal it. United States v. Concepcion-Guliam, 2023 U.S. App. LEXIS 5830 (1st Cir. Mar. 10, 2023). Delaware’s loitering statute gives the officer the right to ask … Continue reading

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OH8: Not following up on obvious window tint violation didn’t make stop for that unreasonable

The officer reasonably believed the car’s tint violated the law because he literally could not see in it. The fact he didn’t follow up more on that doesn’t make it pretext. State v. McDonald, 2023-Ohio-464, 2023 Ohio App. LEXIS 444 … Continue reading

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AR: Search incident to sex offense produced microSD cards that could be seized

Defendant was arrested for a sex offense, and his search incident produced three microSD cards that fell to the ground. They were properly seized and then searched with a warrant finding child porn. Lewis v. State, 2023 Ark. 12, 2023 … Continue reading

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E.D.Va.: No 4A right to notice before a search occurs; state search law inapplicable in federal court

Defendant’s Fourth Amendment claim is that he was given no notice that his phones had been searched, citing Virginia law, which is irrelevant in a federal prosecution, even though state officials did all the searching. There’s no constitutional right to … Continue reading

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IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained

The fundamental error avenue to appeal an unobjected to search and seizure claim requires a showing that the evidence was all fabricated, not just that the search was bad. Evidence obtained by search and seizure is usually highly relevant to … Continue reading

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E.D.Cal.: Def had standing in car he was driving with permission of owner

As the driver of the car and the person with lawful possession, defendant had standing to challenge the search of the car he didn’t own. The GPS warrant for it was based on probable cause, and the warrant for firearms … Continue reading

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CA8: Post-trial assertion of 4A issue was waived

Defendant’s post-trial claim that the tracking warrant used to find him expired three weeks before the arrest was waived by not having been filed pretrial. Even if plain error is applied, “we agree with the district court there was no … Continue reading

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M.D.Ga.: Officer isn’t obliged to mention he could smell marijuana coming from the car

An officer smelling marijuana in a car isn’t obliged to tell the motorist he could for it to be true. United States v. Perkins, 2023 U.S. Dist. LEXIS 10564 (M.D. Ga. Jan. 19, 2023). At worst, the officer’s false statement … Continue reading

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AR: Claim state’s response to motion to suppress was judicial admission has to be presented to trial court

To argue that the state’s admissions in a response to a motion to suppress amount to a judicial admission of fact, the issue has to be argued to the trial court to preserve it. Otherwise, the trial court is free … Continue reading

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E.D.Tenn.: 11 day delay in getting computer SW not unreasonable

Depending on how one counted the time between the seizure of the cell phone and the search warrant, it was either 3 or 11 days, and either is reasonable. United States v. Deakins, 2023 U.S. Dist. LEXIS 6661 (E.D. Tenn. … Continue reading

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CA5: No suppression for no-knock violation

There is no suppression remedy for an unjustified no-knock warrant. United States v. Bryant, 2023 U.S. App. LEXIS 355 (5th Cir. Jan. 6, 2023). Defendant didn’t enter a conditional plea, so his guilty plea waived his Fourth Amendment claim. United … Continue reading

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D.Minn.: All theories to suppress must be raised to USMJ on referral or it’s waived

Defendant’s storage unit had the doors and handles tested with Ion Scanning. He had no reasonable expectation of privacy in that. Before the USDJ, however, he raised it was a trespass to do it as the officers did. That’s waived … Continue reading

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N.D.Okla.: NCIS SW in Japan as violation of Posse Comitatus Act was waived by guilty plea

Defendant was the subject of an NCIS search warrant while stationed in Japan. That led to his prosecution in the Northern District of Oklahoma. His guilty plea waived his claim the Posse Comitatus Act was somehow violated. United States v. … Continue reading

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CA7: Pro se letter to court to preserve search claim wasn’t conditional plea

Defendant pled to the indictment, having written a letter to the court that he wanted to preserve his search claim. His pro se letter did not satisfy the conditional plea rule. United States v. Turner, 2022 U.S. App. LEXIS 35476 … Continue reading

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WI: When statute or ordinance on which search was based is challenged, AG or city must be present

When challenging the constitutionality of an ordinance or statute as making a search and seizure unreasonable, defendant must join the city or notify the AG to participate. Without it, that’s waiver. “Because Raddemann has not shown compliance with Wis. Stat. … Continue reading

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N.D.Cal.: Attic apt and treehouse not specified in SW, but searches there still reasonable

An attic apartment and a treehouse were not specifically within the terms of the warrant, but the search was still reasonable. United States v. Ayala, 2022 U.S. Dist. LEXIS 227976 (N.D. Cal. Dec. 19, 2022). Defendant didn’t timely challenge his … Continue reading

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OR: Even constitutional challenges need to be preserved below

Even constitutional challenges need to be preserved below. Jimenez v. Dep’t of Revenue, 370 Or. 543 (Dec. 15, 2022). The court does not find the officer’s testimony credible. He claimed he saw defendant with binoculars from 100′ away buying liquor … Continue reading

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CA3: Scope of curtilage argument changed on appeal and thus waived

This case involved an argument about what is curtilage around a tent and firepit. Explosives were found outside this curtilage. On appeal, the scope of curtilage changed, and it’s waived. United States v. Madziarek, 2022 U.S. App. LEXIS 34076 (3d … Continue reading

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