Category Archives: Ineffective assistance

WI: Consent to search a computer was limited to def’s son’s user files; forensically searching recycle bin exceeded the scope of consent

Defendant granted consent to search only his son’s files on his computer. The forensic analyst searched the recycle bin, too, and that exceeded the scope of consent. Shared files were not within the scope of consent. State v. Jereczek, 2021 … Continue reading

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GA: Valid strategic choice to forego search claim to support defense

Involving pre-Carpenter CSLI, the defense had valid strategic reasons to forego a motion to suppress to support the defense arguments at trial. “Because we hold that Thomas’s trial counsel did not perform deficiently because she had a reasonable strategic purpose … 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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IL: CSLI 11 years before Carpenter obtained in good faith

CSLI data obtained 11 years before Carpenter was obtained in good faith at the time and would not be suppressed. People v. Potts, 2021 IL App (1st) 161219, 2021 Ill. App. LEXIS 166 (Mar. 31, 2021). Defense counsel was not … Continue reading

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DE: Wiretap info in affidavit for SW showed nexus to cell phone

The affidavit showed probable cause for the search warrant, and nexus to his cell phone and the crime under investigation is shown in a wiretap. Anderson v. State, 2021 Del. LEXIS 121 (Mar. 30, 2021).* Defendant did not show a … Continue reading

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E.D.N.Y.: Summons to appear is not a 4A seizure

A summons to appear is not a seizure. Jianjun Li v. Village of Saddle Rock, 2021 U.S. Dist. LEXIS 60705 (E.D. N.Y. Mar. 30, 2021). New York statute that special prosecutors have to give notice to elected DAs about, inter … Continue reading

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DE: Defense counsel’s letter to client why 4A claim would fail shows def would never prevail

“Turning to Stokes’ claim that trial counsel was ineffective for failing to investigate his case and make various arguments on his behalf, the record refutes this claim. First, it is clear that trial counsel carefully considered filing a motion to … Continue reading

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TX5: Lack of a timely return doesn’t warrant suppression despite mandatory language of statute

A lack of return isn’t a basis for suppression. “Although the requirements set forth in this provision of the code of criminal procedure appears to be mandatory, courts have consistently held that ministerial violations of the search warrant statutes do … Continue reading

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CT: Both halves of a duplex can’t be searched under a warrant for one

A search of both halves of a duplex under a search warrant for one was unreasonable and had to be suppressed. State v. Lyons, 2021 Conn. App. LEXIS 100 (Mar. 30, 2021). Defense counsel wasn’t ineffective for not challenging the … Continue reading

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NY3: CI’s alleged false statement wasn’t enough to suppress

As to an alleged false statement by the CI, it didn’t undermine the probable cause finding. People v. Cazeau, 2021 NY Slip Op 01806, 2021 N.Y. App. Div. LEXIS 1947 (3d Dept. Mar. 25, 2021) (nearly four years from judgment … Continue reading

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TX5: SW to seize blood for BAC also allows analysis

Texas already settled the issue that a search warrant to take blood implicitly includes the ability to test it. State v. Armstrong, 2021 Tex. App. LEXIS 2162 (Tex. App. – Dallas Mar. 22, 2021).* The stop was reasonably extended because … Continue reading

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D.V.I.: CI’s information of def was commonly known and in paper; yet, GFE applies

The search warrant here was based on the CI’s relating largely publicly-known information, some of which was in the newspaper online. It wasn’t predictive, but all historical of criminal record, the kind of car, etc. This is close but no … Continue reading

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D.Minn.: Information from named security guard passing on detailed hearsay from unidentified source in 911 call was reliable

The 911 caller here was an identified security guard who passed on detailed information he’d received from a source. The detail made it reliable enough for reasonable suspicion. United States v. Valenzuela, 2021 U.S. Dist. LEXIS 50262 (D. Minn. Feb. … Continue reading

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IL: Def’s failure to answer request for consent is not implied consent

When asked for consent, defendant didn’t answer. The officer’s testimony that “he not tell me no” was not consent, which had to proved by the state. People v. Banta, 2021 IL App (4th) 180761, 2021 Ill. App. LEXIS 112 (Mar. … Continue reading

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NC: DUI checkpoint had programmatic purpose

The state proved a valid programmatic purpose for its driver’s license and DUI checkpoint. State v. Macke, 2021-NCCOA-70, 2021 N.C. App. LEXIS 61 (Mar. 16, 2021). Defense counsel was not ineffective for not challenging defendant’s stop because there was reasonable … Continue reading

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CT: Defense counsel not ineffective for not calling def as witness at suppression hearing

Defense counsel was not ineffective for not calling defendant to testify at the suppression hearing to avoid potential further admissions of guilt [What about Simmons v. United States and its “immunity”?], and defense counsel was confident standing was shown. Moreover, … Continue reading

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OH7: Search incident proper after concealed weapon found on def

Defendant was searched and arrested for a concealed weapon. That did not prohibit the officers from further searching his personal effects in his clothes. State v. Zepernick, 2021-Ohio-719, 2021 Ohio App. LEXIS 724 (7th Dist. Mar. 4, 2021). 2254 petitioner’s … Continue reading

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W.D.Mo.: Govt moots motion to suppress by deciding not to use challenged evidence

When the defendant files a motion to suppress and the government elects not to use the evidence at trial, the motion becomes moot. United States v. Bowers, 2021 U.S. Dist. LEXIS 45445 (W.D. Mo. Mar. 11, 2021). Defendant’s 2255 for … Continue reading

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TX13: State showed exigency for BAC without SW because it would have taken one of two officers off-duty

The state showed exigency in not getting a search warrant for defendant’s BAC after a serious car crash left him unconscious. It would have taken hours to get the warrant back then [2013] and it would have taken one of … Continue reading

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CA9: DV victim, def’s wife, consented to search for firearms

Defendant’s wife called the police as a domestic violence victim, and she was found to have consented to a search of their garage and gun safe. She was emotional, considering what she’d been through, but consent wasn’t involuntary. She was … Continue reading

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