Category Archives: Ineffective assistance

IL: Direct appeal record isn’t adequate to determine IAC claim on failure to litigate consent search

The record doesn’t show the reason for waiving a Fourth Amendment claim against a consent search and whether a motion to suppress would have been granted if litigated. A collateral proceeding is the place to do it. People v. Williamson, … Continue reading

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E.D.Mich.: No IAC where suppression motion wouldn’t be granted

Defense counsel wasn’t ineffective for not moving to suppress cell phone records in 2014 because that motion would not be granted. United States v. Scott, 2018 U.S. Dist. LEXIS 78666 (E.D. Mich. May 10, 2018).* The CI’s information was corroborated … Continue reading

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E.D.Va.: Def could be seized under the SW for the business searched when he was found near the door heading in

The narcs timed execution of a search warrant for when defendant’s heroin dealer would arrive. He was near the front door when the police arrived, and he could be detained under Summers and Bailey. United States v. Jones, 2018 U.S. … Continue reading

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CA5: Automobile exception applied; although def was handcuffed, wife showed up acting somewhat belligerently

Defendant was in custody, handcuffed and on the ground, but his wife showed up acting somewhat belligerent. Her presence satisfied exigency for the car search. United States v. Beene, 2018 U.S. App. LEXIS 11400 (5th Cir. May 2, 2018). Defense … Continue reading

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WA: SW for firearms in house permitted forcing open gun safe

A search warrant for firearms necessarily includes the ability of the police to open a gun safe found in the place to be searched, even though the officer was aware there might be a gun safe and it wasn’t specifically … Continue reading

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OH9: “Counsel’s decision not to pursue every possible angle [in a suppression motion] is not ineffective assistance.”

“Counsel’s decision not to pursue every possible angle [in a suppression motion] is not ineffective assistance.” State v. Palmer, 2018-Ohio-1486, 2018 Ohio App. LEXIS 1631 (9th Dist. Apr. 18, 2018). Defendant’s swerving vehicle and trailer provided reasonable suspicion for a … Continue reading

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D.Nev.: Court order for cell phone detail information under 18 U.S.C. § 2703(d) requires only RS

A court order for cell phone detail information under 18 U.S.C. § 2703(d) requires only reasonable suspicion, following In re Applications of the United States of Am. for an Order Pursuant to 18 U.S.C. § 2703(d), 206 F. Supp. 3d … Continue reading

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TN: Argument “the rule” of witness exclusion of Rule 615 at suppression hearing has to be made in trial court

Defendant didn’t preserve for appeal his argument that the suppression hearing court allowed witnesses to sit in the rehearing of the suppression hearing because he didn’t make it to the trial court. At any rate, the transcripts of the hearing … Continue reading

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IN: Def’s backpack would have been searched anyway, so inevitable discovery applied

Inevitable discovery applied to the search of defendant’s backpack. He was arrested, and the search would have occurred as a result of that. The merits of defendant’s search claim is thus moot. Winborn v. State, 2018 Ind. App. LEXIS 133 … Continue reading

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D.Neb.: Unwarned questioning about control of a bedroom wasn’t custodial

UnMirandized questioning about defendant’s control of a bedroom was a close call, but not found not custodial. “This case presents a close call. On balance, the Court concludes that under Muniz and Fleck and the circumstances of this case, Sergeant … Continue reading

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IL: Def’s actions after stop to inquire rose to RS

Police encountered defendant and others in a car in a neighborhood where it didn’t seem to belong. The officers pulled up next to their car and talked. Based on furtive movements, the officer believed that defendant had a gun he … Continue reading

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D.Neb.: Def’s Franks IAC claim fails for lack of any allegations of fact

“Lloyd makes four claims of ineffective assistance of counsel. Those claims border on the ridiculous.” As to his Fourth Amendment IAC claim for not making a Franks challenge, he alleges nothing was false. United States v. Lloyd, 2018 U.S. Dist. … Continue reading

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