Category Archives: Ineffective assistance

E.D.N.C.: Removing protective sweep from affidavit for SW still leaves PC

While protective sweep was unreasonable, excising it from the affidavit for search warrant, still leaves probable cause. United States v. Lee, 2020 U.S. Dist. LEXIS 171270 (E.D. N.C. Sept. 18, 2020). “In sum, counsel reasonably could have concluded that movant … Continue reading

Posted in Ineffective assistance, Protective sweep, Uncategorized | Comments Off on E.D.N.C.: Removing protective sweep from affidavit for SW still leaves PC

E.D.Tex.: Def’s attempts to distinguish Hudson and no ER for knock-and-announce fails

Defendant’s efforts to distinguish Hudson and its refusal to apply the exclusionary rule to knock-and-announce violations fail. United States v. Pyles, 2020 U.S. Dist. LEXIS 169623 (E.D. Tex. Sept. 16, 2020). Petitioner gets a CoA on the following habeas issue: … Continue reading

Posted in Ineffective assistance, Informant hearsay, Knock and announce | Comments Off on E.D.Tex.: Def’s attempts to distinguish Hudson and no ER for knock-and-announce fails

E.D.Va.: SW authorized search of safe in house even though in room of another occupant

The search warrant authorized a search of a safe in a house even though the room it was in wasn’t occupied by the target of the search. The search warrant wasn’t stale because the drug activities it refers to were … Continue reading

Posted in Ineffective assistance, Scope of search, Standards of review | Comments Off on E.D.Va.: SW authorized search of safe in house even though in room of another occupant

IL: Mistaken application of unambiguous statute not a Heien reasonable mistake of law

“Kinsella misinterpreted an unambiguous statute, thereby committing an unreasonable mistake of law. See Gaytan, 2015 IL 116223, ¶ 45; see also United States v. Stanbridge, 813 F.3d 1032, 1037-38 (7th Cir. 2016) (‘[The officer] simply was wrong about what the … Continue reading

Posted in Ineffective assistance, Reasonableness | Comments Off on IL: Mistaken application of unambiguous statute not a Heien reasonable mistake of law

CA11: 2255 petitioner made a showing that reasonable jurists could disagree on merits of 4A claim not pursued, so he gets a CoA

Defendant, a 2255 petitioner, made a sufficient showing that reasonable jurists could disagree whether the Fourth Amendment claim that wasn’t pursued had merit. Therefore, the CoA is granted. Day v. Fla. Dep’t of Corr., 2020 U.S. App. LEXIS 27153 (11th … Continue reading

Posted in Ineffective assistance, Informant hearsay | Comments Off on CA11: 2255 petitioner made a showing that reasonable jurists could disagree on merits of 4A claim not pursued, so he gets a CoA

D.Mont.: Articulable suspicion not needed to run a license plate

Articulable suspicion not needed to run a license plate. United States v. Thompson, 2020 U.S. Dist. LEXIS 154156 (D. Mont. Aug. 24, 2020). Defense counsel wasn’t ineffective for not moving to suppress alleged overseizure of a doctor’s patient records where … Continue reading

Posted in Ineffective assistance, Plain view, feel, smell, Probable cause, Reasonable expectation of privacy | Comments Off on D.Mont.: Articulable suspicion not needed to run a license plate

W.D.Tex.: Whether defense counsel should file a motion to suppress is strategic decision

“A decision of whether or not to file a motion to suppress is a strategic choice of counsel.” Here, there was no factual basis to file a motion to suppress. Waters v. United States, 2020 U.S. Dist. LEXIS 147764 (W.D. … Continue reading

Posted in Ineffective assistance, Knock and announce | Comments Off on W.D.Tex.: Whether defense counsel should file a motion to suppress is strategic decision

CA5: Traffic safety checkpoint was scantly justified, but still reasonable

A Mississippi traffic safety checkpoint was reasonable on the totality because every car was stopped, even though the programmatic purpose of the checkpoint was scant. Reasonable suspicion developed that the occupants of the vehicle were being trafficked. United States v. … Continue reading

Posted in Immigration checkpoints, Ineffective assistance, Roadblocks | Comments Off on CA5: Traffic safety checkpoint was scantly justified, but still reasonable

MD: Defense counsel in drug case had conflict of interest in representing police officer in a divorce case who arrested and searched client and the search wasn’t contested

Defense counsel had a conflict of interest where he represented both a drug case client and the police officer who arrested and searched him and his cell phone. Defendant made a sufficient showing of actual prejudice to warrant a new … Continue reading

Posted in Ineffective assistance | Comments Off on MD: Defense counsel in drug case had conflict of interest in representing police officer in a divorce case who arrested and searched client and the search wasn’t contested

D.Me.: No exigent circumstances for BAC blood sample without SW

A Park Ranger in Acadia National Park in Maine followed Maine law to get a blood sample without a search warrant. There were no exigent circumstances, and the blood sample is suppressed. United States v. Manubolu, 2020 U.S. Dist. LEXIS … Continue reading

Posted in Drug or alcohol testing, Emergency / exigency, Ineffective assistance | Comments Off on D.Me.: No exigent circumstances for BAC blood sample without SW

Cal.3: Plain view of possession of more than a recreational amount of drugs was PC

Defendant’s detention was reasonable, and, during the stop, three large bags of marijuana were seen on the floor of the car. Possession of under an ounce is legal, but this was more than an ounce, so continuing the detention for … Continue reading

Posted in Ineffective assistance, Probable cause | Comments Off on Cal.3: Plain view of possession of more than a recreational amount of drugs was PC

D.Minn.: Two SWs on consecutive days were part of same investigation so they aren’t severed for trial

Two search warrants on consecutive days produced drug counts against defendant. They are part of the same investigation, so they are joined for trial. United States v. Martin, 2020 U.S. Dist. LEXIS 141845 (D. Minn. July 6, 2020). Ineffective assistance … Continue reading

Posted in Admissibility of evidence, Ineffective assistance | Comments Off on D.Minn.: Two SWs on consecutive days were part of same investigation so they aren’t severed for trial

CA11: A cell phone with 2kg of heroin and cash is PC for the phone

“[L]aw enforcement officers had probable cause to obtain a warrant to search the cell phone because it was found in a truck with two kilograms of heroin and $24,000 of loose currency during the investigation into the heroin-distribution conspiracy.” CoA … Continue reading

Posted in Admissibility of evidence, Cell phones, Ineffective assistance, Probable cause | Comments Off on CA11: A cell phone with 2kg of heroin and cash is PC for the phone

CA6: Failure to object to USMJ’s R&R is waiver of 4A claim

Defendant waived his Fourth Amendment challenge to his stop and frisk by not objecting to the USMJ’s R&R. United States v. Smith, 2020 U.S. App. LEXIS 24261 (6th Cir. July 31, 2020). Defendant doesn’t show any plausible basis for defense … Continue reading

Posted in Ineffective assistance, Standards of review | Comments Off on CA6: Failure to object to USMJ’s R&R is waiver of 4A claim

E.D.Wash.: Connecting seized cell phone to internet not a search

Connecting already seized cell phone to the internet was not shown to be a search (citing no law). United States v. Murray, 2020 U.S. Dist. LEXIS 136292 (E.D. Wash. July 2, 2020). 2255 claim that defense counsel was ineffective for … Continue reading

Posted in Abstention, Ineffective assistance, Seizure | Comments Off on E.D.Wash.: Connecting seized cell phone to internet not a search

IN: Def counsel’s not filing a motion to suppress was strategic for plea purposes, not because of conflict

Defendant claimed defense counsel had a conflict of interest in not filing a motion to suppress because counsel also represented defendant’s wife. Their interests were identical in the case. The decision not to pursue the motion was to secure a … Continue reading

Posted in Ineffective assistance, Inventory | Comments Off on IN: Def counsel’s not filing a motion to suppress was strategic for plea purposes, not because of conflict