Category Archives: Waiver

CA9: Changing allegedly offending officer in Franks challenge on appeal was waiver

Defendant’s Franks challenge to one officer’s alleged misstatements were changed on appeal to involve another officer. This was waiver. United States v. Arnold, 2020 U.S. App. LEXIS 37199 (9th Cir. Nov. 25, 2020). In the college admissions scam case, “Here, … Continue reading

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CT: State failed to prove proximity to premises under Summer and Bailey

The state at first didn’t rely on Summers and Bailey for proximity to the place searched for detaining and searching defendant. The trial court suggested it. Then they didn’t prove sufficient proximity to justify the stop. State v. Rolon, 2020 … Continue reading

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CA5: Def’s contesting authenticity of jail calls let the govt establish they came from jail

Not a search claim: Admission of jail telephone calls didn’t undermine the presumption of innocence. Defendant wouldn’t stipulate to authenticity so the government had to establish the source of the calls. United States v. Arayatanon, 2020 U.S. App. LEXIS 35922 … Continue reading

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NY2: Failure to call officer involved at suppression hearing was waiver here

Defendant’s claim of his statement being in violation of the Fourth Amendment isn’t preserved for appeal by lack of testimony of the officer involved. People v. Molina, 2020 NY Slip Op 06553. 2020 N.Y. App. Div. LEXIS 6651 (2d Dept. … Continue reading

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NE: Search of passenger’s purse by consent for passenger compartment was based on reasonable belief it was passenger’s

The driver consented to a search of the car defendant was a passenger in. The passenger’s purse was reasonably believed to be the driver’s for consent purposes, even though it was on her side. When it was opened and her … Continue reading

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FL4: Police use of a flashlight isn’t itself a search

“R.F. appeals the denial of his motion to suppress physical evidence. Because we conclude appellant was not seized for Fourth Amendment purposes where the deputy used a spotlight and a flashlight to illuminate his approach of appellant, we affirm the … Continue reading

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TX14: SW to take blood includes ability to forensically test it

The search warrant for taking defendant’s blood included the ability to forensically test it. The fact that the forensic analysis of defendant’s blood occurred at a date beyond the three-day window for execution of the warrant did not render the … Continue reading

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GA: Entry into def’s house for pulling a gun on somebody elsewhere wasn’t in hot pursuit and suppressed

Officers entered defendant’s home for allegedly pulling a gun on his girlfriend at another house. They weren’t in hot pursuit, and the entry was unreasonable and is suppressed. The state’s inevitable discovery argument that a search warrant would have been … Continue reading

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MS: Failure to discuss 4A claims with def isn’t IAC

Defense counsel is not shown to be ineffective merely because defense counsel didn’t advise him that a motion to suppress maybe could have been pursued. Cuevas v. State, 2020 Miss. App. LEXIS 587 (Oct. 20, 2020). Defendant’s guilty plea waived … Continue reading

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AR: Video of arrest wasn’t claimed below to be a const’l claim, so it’s waived

Defendant sought to suppress the video of his arrest where he held a knife to his throat but he cited nothing for the Fourth, Fifth, or Sixth Amendment, but he did cite Rule 403. The state argued it was evidence … Continue reading

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TX1: Driving offenses can be an indication of RS by showing avoidance of being stopped

Driving offenses can be indicators of drug trafficking and avoidance. “Therefore, based on the information he received from Captain Garrett related to appellant’s involvement in possible narcotics trafficking, combined with his observations of appellant driving on the shoulder, we conclude … Continue reading

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MA: CP warrant wasn’t stale where information was 7 months old and he was a collector

Defendant’s motion to suppress was properly denied. The affidavit referred to child pornography access on the internet seven months before the search warrant was sought, and it was not stale because it was likely child pornography would be found in … Continue reading

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MA: Def’s arrest in car with others didn’t remove safety factor of search for firearm

Defendant’s arrest didn’t remove the safety factor because there were others in the vehicle who could access a potential weapon. Therefore, the search for the weapon was reasonable. Commonwealth v. Silvelo, 2020 Mass. LEXIS 647 (Oct. 14, 2020). Defendant filed … Continue reading

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VA: Knock-and-talk is still a valid exception for entry onto the curtilage

While entry into the curtilage is presumptively unreasonable without a warrant, Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018), there is still implied license for police to enter for a knock-and-talk. Saal v. Commonwealth, 2020 Va. App. LEXIS 241 … Continue reading

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KS: Legality of a stop may be pursued before DMV in a DL suspension

The legality of a stop may be pursued before DMV in a DL suspension. Jarvis v. Kan. Dep’t of Revenue, 2020 Kan. LEXIS 97 (Oct. 9, 2020). The trial court barred relitigating defendant’s Fourth Amendment claim on collateral estoppel grounds. … Continue reading

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OH8: Stop justified by running LPN and seeing it was suspended; RS not required to check it

“Here, while Officer Mackensen had no reasonable suspicion that Long was involved in criminal activity before he checked Long’s vehicle’s license plate, he was permitted to do so pursuant to the case law authority. And, once he learned the license … Continue reading

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