Category Archives: Ineffective assistance

CA3: Govt agreed that SW materials could be released in terrorism case, but not plea agreement; no abuse of discretion in keeping plea papers sealed

In a terrorism case, the government agreed that search warrant materials could be unsealed, but resisted disclosure of plea agreements and plea related materials. They were presumptively open records at common law and the First Amendment, but the government made … Continue reading

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GA: An issue briefed but not heard at the suppression hearing was fairly presented and preserved

A newer issue raised in a post-hearing brief on the motion to suppress was a part of the motion when it was decided by the trial court. A padlock on a door and a fan running inside does not support … Continue reading

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ID: A parole arrest done by a LEO on the parole officer’s request doesn’t violate 4A

A parole arrest wasn’t in violation of the Fourth Amendment just because a parole officer got a law enforcement officer to do it. There also was probable cause for the arrest. State v. Ayala, 2018 Ida. App. LEXIS 41 (Sep. … Continue reading

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OH8: Hard to show prejudice for IAC on not raising a motion to suppress until mid-trial

Defense counsel didn’t file a motion to suppress because she didn’t see a reason for it until testimony at trial revealed the issue. Therefore, the defense made a mid-trial motion to suppress. The trial court denied it on two grounds: … Continue reading

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OR: Failure to appeal order denying return of property precludes later relief

Defendant’s denial of his motion for return of property was a final appealable order, and his failure to appeal foreclosed later recovery. State v. Fenton, 294 Ore. App. 48, 2018 Ore. App. LEXIS 1091 (Sep. 13, 2018). Defense counsel made … Continue reading

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CA9: No QI for IRS agent insisting that she watch ptf pee in her own bathroom during execution of tax SW

During an IRS criminal search, an IRS supervisory officer insisted that she watch plaintiff urinate in plaintiff’s own bathroom. This was sufficient to show an unreasonable invasion of privacy and overcome qualified immunity. Ioane v. Hodges, 2018 U.S. App. LEXIS … Continue reading

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NC: Car parked on street was not on the curtilage

A car parked on the street next to a house was not on the curtilage as a matter of law. Based on undisputed facts in the record, however, the officer had probable cause to search the car on the street. … Continue reading

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LA2: No IAC for not challenging search of house two months after murder

Defense counsel wasn’t ineffective for not moving to suppress a search of defendant’s home two months after a murder because it wasn’t meritorious [and the court never says why it wasn’t]. State v. Critton, 2018 La. App. LEXIS 1618 (La. … Continue reading

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D.Colo.: There is no requirement the SW particularly describe the inside of the place to be searched

The CI was corroborated by controlled buys and surveillance cameras showing drug deals outside defendant’s home. The house was sufficiently described that the wrong house wouldn’t be searched. “Ms. Pereda nonetheless argues the search warrant lacked particularity because it did … Continue reading

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D.Conn.: Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis

Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis. United States v. Blake, 2018 U.S. Dist. LEXIS 141895 (D. Conn. Aug. 20, 2018). “Here, Rivarola does not explain what, if anything, further investigation by his prior … Continue reading

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W.D.Ark.: When challenging SW, def has burden of pleading to attach the SW and affidavit to the motion to suppress

When challenging a search warrant, the defendant needs to attach the warrant and affidavit to the motion to suppress. The government did instead. Here, the search warrant wasn’t even needed because there was probable cause for a vehicle search under … Continue reading

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CA2: Motion to reopen suppression hearing for alleged IAC was subject to abuse of discretion; not abused here

Defendant attempted to reopen his suppression hearing based on alleged ineffective assistance by former counsel. The trial court denied the motion based on a credibility determination of the witnesses. The place to bring the IAC claim is in post-conviction. The … Continue reading

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