Category Archives: Waiver

CA11: Shooting suicidal person who posed no threat to others unreasonable

Shooting a suicidal person three times without an effort to deescalate was unreasonable. The officer came upstairs with a gun drawn without knowing of any risk to himself, and there never was. Teel v. Lozada, 2020 U.S. App. LEXIS 30358 … Continue reading

Posted in Consent, Qualified immunity, Reasonableness, Waiver | Comments Off on CA11: Shooting suicidal person who posed no threat to others unreasonable

CA6: Closely monitored controlled buy shows CI’s reliability

The affidavit for the search warrant here didn’t state the second CI was reliable, but reliability was shown by closely monitoring the controlled buy, and that showed probable cause. United States v. Jones, 2020 U.S. App. LEXIS 29878 (6th Cir. … Continue reading

Posted in Informant hearsay, Waiver | Comments Off on CA6: Closely monitored controlled buy shows CI’s reliability

CA9: There is no exhaustion requirement for other investigative techniques for a tracking warrant, but failure to adequately brief it is waiver anyway

The affidavit for this GPS tracking warrant said that other investigative techniques had been exhausted, and defendant claims it was false. “Colldock also contests the affidavit’s statement that law enforcement had, before seeking a GPS tracking warrant, ‘exhausted its investigative … Continue reading

Posted in GPS / Tracking Data, Waiver | Comments Off on CA9: There is no exhaustion requirement for other investigative techniques for a tracking warrant, but failure to adequately brief it is waiver anyway

TX4: Illegal stop claim was waived for failure to present to trial court

Defendant’s illegal stop claim for having an open container in San Antonio wasn’t presented in the trial court so it’s waived. Sowers v. State, 2020 Tex. App. LEXIS 7473 (Tex. App. – San Antonio Sept. 16, 2020).* “This Fourth Amendment … Continue reading

Posted in § 1983 / Bivens, Seizure, Waiver | Comments Off on TX4: Illegal stop claim was waived for failure to present to trial court

N.D.Ohio: Health care admin subpoenas to indicted def unenforceable

“In light of the above, the Court agrees with Defendants that post-indictment, heath care administrative subpoenas that seek information that may be relevant to pending charges may not be directed towards a criminal defendant. As discussed above, Phibbs does not … Continue reading

Posted in Subpoenas / Nat'l Security Letters, Waiver | Comments Off on N.D.Ohio: Health care admin subpoenas to indicted def unenforceable

CA5: § 1983 4A claim that evidence was inadmissible at trial was Heck barred, and then waived on appeal

Plaintiff’s § 1983 Fourth Amendment claim was framed as a claim the evidence was inadmissible at trial. Thus it was barred. His appeal was over denial of IFP status, which was also denied, and he waived the Fourth Amendment claim … Continue reading

Posted in Franks doctrine, Issue preclusion, Waiver | Comments Off on CA5: § 1983 4A claim that evidence was inadmissible at trial was Heck barred, and then waived on appeal

CA2: Arguable PC to arrest makes it valid

“Because the defendants had at least arguable probable cause to arrest Barnes for an open container violation, the search was also lawful. A search incident to arrest is lawful where the officer reasonably believed he had probable cause, regardless of … Continue reading

Posted in Arrest or entry on arrest, Probable cause, Waiver | Comments Off on CA2: Arguable PC to arrest makes it valid

NY1: Failure to get a ruling on search issue in trial court is waiver

Failure to get a ruling on a search claim in the trial court is waiver of the issue for appeal. People v. Collins, 2020 NY Slip Op 04517, 2020 N.Y. App. Div. LEXIS 4610 (1st Dept. Aug. 13, 2020). Drug … Continue reading

Posted in Dog sniff, Reasonable suspicion, Search, Staleness, Waiver | Comments Off on NY1: Failure to get a ruling on search issue in trial court is waiver

FL3: Some discretion in the seizing officers as to what should be seized was not unreasonable or a lack of particularity

Some discretion in the seizing officers as to what should be seized was not unreasonable or a lack of particularity. An unfilled-in blank on the warrant didn’t make it vague, either. Also, defendant waived his probable cause argument on appeal … Continue reading

Posted in Particularity, Waiver | Comments Off on FL3: Some discretion in the seizing officers as to what should be seized was not unreasonable or a lack of particularity

M.D.Tenn.: Dashcam perspective may be different than officer’s

The dashcam video does not undermine the crediblity of the officer on the basis for the stop because the dashcam’s perspective may be different than the officer’s. United States v. Cart, 2020 U.S. Dist. LEXIS 130796 (M.D. Tenn. July 24, … Continue reading

Posted in Standards of review, Waiver | Comments Off on M.D.Tenn.: Dashcam perspective may be different than officer’s

ND: Failure to adequately brief a 4A issue is waiver

“While Lindquist makes a conclusory statement that his detention was unlawful, he failed to adequately develop an argument in support of this contention. The district court’s findings have adequate support in the record. ‘Our Court will not consider an argument … Continue reading

Posted in Consent, Waiver | Comments Off on ND: Failure to adequately brief a 4A issue is waiver

VA: 4A claim waived by not getting ruling below

Defendant waived his Fourth Amendment claim by not getting a ruling on the issue in the trial court. Spencer v. Commonwealth, 2020 Va. App. LEXIS 206 (July 21, 2020). Defendant lost his search claim in the district court and on … Continue reading

Posted in Ineffective assistance, Waiver | Comments Off on VA: 4A claim waived by not getting ruling below

PA: State waived challenge to def’s reliance on state constitution

The state waived its challenge to the defendant’s reliance on the state constitution by failure to litigate it below. Waiver claims have to be applied evenhandedly between the state and defendants. Commonwealth v. Wolfel, 2020 Pa. LEXIS 3797 (July 21, … Continue reading

Posted in Franks doctrine, Nexus, State constitution, Waiver | Comments Off on PA: State waived challenge to def’s reliance on state constitution

CA10: Entry onto curtilage at 3:30 am was reasonable based on exigency of domestic battery call

Police approach to defendant’s house at 3:30 am was reasonable because it was based on a domestic violence report to check on his wife. “Finally, Jardines, King, and Manzanares do not apply here. The Officers did not search Mr. Martinez’s … Continue reading

Posted in Curtilage, Emergency / exigency, Waiver | Comments Off on CA10: Entry onto curtilage at 3:30 am was reasonable based on exigency of domestic battery call

NY4: Jurisdiction of magistrate to issue SW is waivable by guilty plea

A jurisdictional claim to issue the warrant was waived below well before the guilty plea. People v. Mitchell, 2020 NY Slip Op 04029, 2020 N.Y. App. Div. LEXIS 4188 (4th Dept. July 17, 2020). It’s settled that the exclusionary rule … Continue reading

Posted in Exclusionary rule, Waiver | Comments Off on NY4: Jurisdiction of magistrate to issue SW is waivable by guilty plea

CA6: No Bivens remedy for seizure of BoP prisoner’s property

A Bivens remedy should not exist for actions against prisons for seizure of an inmate’s artwork that allegedly violated prison regulations. Courts don’t want to get into monitoring prisons. Callahan v. Fed. Bureau of Prisons, 2020 U.S. App. LEXIS 22115 … Continue reading

Posted in § 1983 / Bivens, Waiver | Comments Off on CA6: No Bivens remedy for seizure of BoP prisoner’s property