Category Archives: Ineffective assistance

CA9: Officer stopping to check on an already stopped motorcycle wasn’t a seizure

Defendant’s motorcycle was already stopped on the side of the road. The officer pulling up to check on him wasn’t a seizure. United States v. Melgoza, 2024 U.S. App. LEXIS 8384 (9th Cir. Apr. 8, 2024). FISA warrants have a … Continue reading

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CA9: No IAC for not filing a motion to suppress email attachments captured by email provider under ToS

Defense counsel wasn’t ineffective for not filing a motion to suppress because it was reasonable to conclude defendant had no reasonable expectation of privacy in email attachments with the email provider where the terms of service also said there was … Continue reading

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CA5: PC showing for house in affidavit for SW also supported automobile exception search of car elsewhere

The affidavit for the warrant for defendant’s house also provided nexus to defendant’s car. When it was driven away from the house just before the search, the police decided to stop and search it. That search was valid under the … Continue reading

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D.N.M.: Def’s IAC claim was frivolous

Defendant’s ineffective assistance of counsel claim, including his Fourth Amendment claim, raised at sentencing was essentially frivolous. Defense counsel negotiated a time served disposition that defendants rejected. The minimum punishment after the guilty verdict was life. The Fourth Amendment claims … Continue reading

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CA8: Police placed a hidden camera across from def’s apt door and used information from it in showing PC for SW; there was PC without it

“Darron Mayo appeals the denial of his motion to suppress evidence obtained from a hidden camera police officers placed across from his apartment door. Officers used some of the evidence obtained from the camera in a probable cause affidavit supporting … Continue reading

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S.D.Ohio: Def’s 50% downward departure on USSG sentencing range makes IAC for not arguing 4A at sentencing moot; harmless error at worst

Where defendant got a 50% downward USSG departure for a 360-life offense, he received no ineffective assistance of counsel for failure to argue a firearm should have been suppressed that led only to a 2 point USSG enhancement. United States … Continue reading

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S.D.Ohio: Defense of denial of possession in drug case meant no assertion of standing to challenge the search, so no IAC

Since the defense was not my dope, not filing a motion to suppress where standing would have to be pled and shown was not ineffective assistance of counsel. United States v. Robinson, 2024 U.S. Dist. LEXIS 52526 (S.D. Ohio Mar. … Continue reading

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OH4: Off-duty police officer can make a traffic stop

An off-duty police officer has the authority to make a traffic stop. Defendant cites no law that says they can’t. In addition, he had probable to make the stop. State v. Netter, 2024-Ohio-1068, 2024 Ohio App. LEXIS 997 (4th Dist. … Continue reading

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CA11: Even if Carpenter applied to license plate readers, it happened before Carpenter was decided so good faith applies

Even if Carpenter applied to automated license plate readers, it was decided the day after this happened, so the good faith exception would apply in any event. In addition, the officer’s testimony about it was lay testimony under F.R.E. 702. … Continue reading

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CA10: Evidence obtained by state in prosecution later barred by McGirt still with good faith

Defendant was originally prosecuted in Oklahoma state court for murder. After McGirt v. Oklahoma, he moved to set aside the Oklahoma conviction as being obtained without jurisdiction. In federal court, he moved to suppress the evidence obtained by the state … Continue reading

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WV: Police looking at the exterior of defendant’s car was not a search and violated no REP

Police looking at the exterior of defendant’s car was not a search and violated no reasonable expectation of privacy. State v. Estep, 2024 W. Va. LEXIS 92 (Feb. 20, 2024).* The trial court granted a Franks motion, but the state … Continue reading

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FL2: Suppression under Franks reversed; not material to PC

Defendant established that there were false statements in the affidavit for warrant that ran the full spectrum from negligence to likely intentionality. But probable cause remained, even excluding what was challenged. “While the temptation to advance the prophylactic purpose of … Continue reading

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E.D.Mich.: The SW failed particularity, but the govt proved inevitable discovery

“Defendant seeks to suppress all evidence seized from the subsequent 2018 search in this case because he argues the 2018 warrant was unconstitutionally overbroad. Although this Court concludes the 2018 search warrant violated the Fourth Amendment’s particularity requirement because it … Continue reading

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E.D.Cal.: Affidavit for SW for def being a prohibited person for firearms possession doesn’t have to allege interstate commerce nexus

A warrant was issued for defendant’s home in California for proof of travel to the Jan. 6 riot at the Capitol. Officers found firearms and defendant was a prohibited person because of domestic violence orders. On the firearms warrant, it … Continue reading

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WV: “Mobile cellular phones” particular enough

“The first warrant authorized the seizure of ‘mobile cellular phones,’ clearly imparting sufficient particularity to allow the officer to know that petitioner’s phone was to be seized. Where the warrant clearly authorized seizure of the phone, there can be no … Continue reading

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D.Me.: SW affidavit mentioned a licensing complaint against defendant doctor, but omission that the complaint was resolved favorably gets a Franks hearing

Defendant is a D.O. accused of over prescribing. She made her substantial preliminary showing to get a Franks hearing because the affiant omitted from the affidavit for warrant that the licensing authority considered the same claims and found she acted … Continue reading

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DE: Cell tower dump was reasonable under 4A

Defendant was convicted of robbery and kidnapping of a woman from her apartment complex to go to her ATM machine. Police got cell tower dumps for the nearest towers to the occurrence at the specific times to locate cell phones … Continue reading

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D.Minn.: Def’s PC suppression argument showed a trial defense, not an argment for suppression

Defendant’s objection to the R&R isn’t enough to overrule the USMJ’s finding there was probable cause. Defendant presents a trial defense, not a defense to probable cause. United States v. Cole, 2024 U.S. Dist. LEXIS 752 (D. Minn. Jan. 3, … Continue reading

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NY Nassau: Mere theory someone else is inside when it’s not even practical doesn’t support a protective sweep

Police were sent to defendant’s house/dentist office on a report of his menacing with a firearm. Defendant came out and submitted. The entry into the house for exigency or protective sweep was not shown by the state to be justified. … Continue reading

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VA: Stop of men on street matching BOLO for other officers to arrive in two minutes was reasonable

The first officer to encounter defendant was responding to a BOLO of suspects on the street related to a nearby home invasion. They were close enough to the description. He stopped them and held them about two minutes until other … Continue reading

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