Category Archives: Unreasonable application / § 2254(d)

D.P.R.: Mere presence of FBI at USPO search didn’t make PO ‘stalking horse’

Mere presence of FBI and other law enforcement officers at USPO’s search based on reasonable suspicion did not make the PO a “stalking horse” for the police. United States v. Borges-Sánchez, 2023 U.S. Dist. LEXIS 66017 (D.P.R. Apr. 14, 2023). … Continue reading

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S.D.Ill.: Strategy under Strickland for defense to admit SW affidavit into evidence

It was not unreasonable strategy for the defense to admit at trial the affidavit for his search warrant to challenge the quality of the investigation that the search produced nothing and the informant wasn’t reliable. He was acquitted of one … Continue reading

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M.D.Ala.: A Franks challenge that appears only to be an attempt to examine the CI fails

Defendant’s Franks challenge fails on recklessness. Moreover, it really is just a desire to cross-examine the CI. “Neal’s request for a Franks hearing also falls short for a separate, independent reason: contrary to the requirements of Franks, Neal’s application for … Continue reading

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D.Or.: Ptf stated 1A retaliation claim that SW for his property was because of his speech

Plaintiff stated a claim that execution of a search warrant for his property and writings was retaliation for exercise of First Amendment rights. “Here, when the evidence is viewed in the light most favorable to Plaintiff, a reasonable juror could … Continue reading

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D.Minn.: No 4A claim for seizure of legal papers in prison

There is no Fourth Amendment claim for seizure of legal papers when an inmate was moving within a prison. Smith v. Starr, 2022 U.S. Dist. LEXIS 139361 (D. Minn. Aug. 5, 2022). “Following the arrest, however, the agents lawfully knew … Continue reading

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CA6: With multiple uses of excessive force, each must be analyzed

“Where ‘a plaintiff claims that excessive force was used multiple times, “the court must segment the incident into its constituent parts and consider the officer’s entitlement to qualified immunity at each step along the way.”’ Wright, 962 F.3d at 865 … Continue reading

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DE: Def counsel not ineffective for not forecasting Jones GPS case

“Because the Court will not find trial counsel ineffective for failing to ‘effectively’ raise an issue of first impression [on GPS placement], and because the Court believes that even if he had done so effectively, the issue would not have … Continue reading

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N.D.Ind.: 2254(d) “unreasonable application” review considered whether correct case law applied

In this 2254, the argument was that the state court’s application of law violated 2254’s “unreasonable” application standard, but it didn’t. The question was whether Michigan v. Long or Arizona v. Gant applies. “In sum, the State courts’ reliance on … Continue reading

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NY4: Minor typos in SW application don’t void the warrant

“We reject defendant’s contention that the search warrant for his cell phones was issued without probable cause. According ‘great deference to the issuing [Justice]’ …, we conclude that Supreme Court properly determined that there was sufficient information in the warrant … Continue reading

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WA: HIPAA violation in seizing medical records by SW required their return

The trial court’s order denying return of patient records taken by search warrant from the petitioner youth services provider failed to comply with HIPAA requirements should have been granted. While the records have been returned and the case is otherwise … Continue reading

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CA9: Use of def’s suppression hearing testimony in penalty phase not unreasonable application of Simmons

The California Supreme Court’s holding that Simmons did not bar using defendant’s suppression hearing testimony in the death penalty phase of his criminal trial (People v. Ochoa, 19 Cal. 4th 353, 79 Cal. Rptr. 2d 408, 966 P.2d 442, 464, … Continue reading

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CA10: Nexus for CP can logically move when def does

Police had probable cause defendant uploaded child pornography from home. Then he moved. It was reasonable to assume his computers went with him to the new address, so nexus was sufficiently shown for probable cause there. United States v. Kilgore, … Continue reading

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S.D.W.Va.: A tiny scrap of mj in a trash pull doesn’t support an inference of drug dealing from the house

“Detective Aldridge could not reasonably have believed that the three tiny scraps of marijuana in the trash—unable to cover even a corner of a Post-it note [actually a stem; photo included]—could support the idea of ongoing or recurrent activity in … Continue reading

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DE: Def had no standing to complain where govt actor entered neighbor’s property to look at his

Plaintiff had no standing to challenge a government actor’s entry into his neighbor’s property to look at his. McCafferty v. New Castle County Bd. of License, 2021 Del. Super. LEXIS 343 (Apr. 26, 2021). No matter how the court views … Continue reading

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D.Minn.: Because tracking order affiant was fired for falsifying other tracking requests doesn’t mean this one was false when def can’t show anything

Defense counsel wasn’t ineffective for not challenging the tracking warrant in defendant’s case based on the fact the officer who got it was fired for falsifying other tracking orders. “Bettis alleges that his counsel was ineffective by failing to challenge … Continue reading

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MI: Inventory policy doesn’t have to be written if it’s standardized

A written search inventory policy isn’t constitutionally required. “We hold that, in order to establish that an inventory search is reasonable, the prosecution must establish that an inventory-search policy existed, all police officers were required to follow the policy, the … Continue reading

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D.Idaho: Traffic stop was admitted pretextual but it was based on RS of a drug offense and otherwise objectively reasonable

Defendant’s traffic stop was admittedly pretextual to investigate a drug offense, and the officers had reasonable suspicion on collective knowledge to justify the stop. United States v. Tuschoff, 2021 U.S. Dist. LEXIS 47130 (D. Idaho Mar. 10, 2021). The CI … Continue reading

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CA11: Def doesn’t show searching officer’s arrest two years after his trial would have changed outcome for successor habeas

Defendant’s searching officer’s arrest two years after defendant’s conviction didn’t qualify for a successor habeas because he couldn’t show that the new information would have affected the officer’s credibility at a suppression hearing or trial, nor does he allege prejudice. … Continue reading

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IA: Oral permission to amend SW to correct address of place to be searched made SW particular

When the executing officers arrived at the place of search, they realized that the particular description of the place to be searched was wrong. The affiant (apparently) called the issuing judge and got permission to amend the warrant’s place to … Continue reading

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N.D.Ohio: Reasonableness of a parole search can include considering def’s criminal record

Knights on parole and probation searches is a reasonableness on the totality test, and this measures up. Defendant’s criminal record is a relevant factor for the officers to consider. United States v. Sharp, 2021 U.S. Dist. LEXIS 18768 (N.D. Ohio … Continue reading

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