Category Archives: Ineffective assistance

FL1: No REP in words blurted out in ER

Defendant’s blurting out that he’d murdered someone caught on bodycam in the ER wasn’t subject to suppression under the state communications privacy law because there was no reasonable expectation of privacy in the utterance. Reed v. State, 2022 Fla. App. … Continue reading

Posted in Ineffective assistance, Informant hearsay, Reasonable suspicion | Comments Off on FL1: No REP in words blurted out in ER

N.D.Ga.: Not IAC to not pursue unsettled 4A question

2255 petitioner doesn’t show ineffective assistance of counsel on counsel’s not pursuing a Fourth Amendment claim on an unsettled question of law. That’s professional judgment. He has to show that the issue was clearly meritorious. Brito-Arroyo v. United States, 2022 … Continue reading

Posted in Ineffective assistance, Issue preclusion, Reasonable suspicion | Comments Off on N.D.Ga.: Not IAC to not pursue unsettled 4A question

M.D.Fla.: Cross-examining officer about mistakes in SW affidavit was mentioned in not finding IAC

All defense lawyers have likely done this: Cross-examining an officer over factual mistakes in the search warrant affidavit. This was mentioned in rejecting other parts of defense counsel’s representation at trial as not deficient under Strickland. Neiheisel v. United States, … Continue reading

Posted in Ineffective assistance, Probable cause, Scope of search | Comments Off on M.D.Fla.: Cross-examining officer about mistakes in SW affidavit was mentioned in not finding IAC

D.Me.: DEA could subpoena records investigating robbery of a marijuana dispensary

The DEA’s administrative subpoenas over records of the suspect over the alleged robbery of a marijuana dispensary were lawful exercises of power. Carpenter does not apply to mere phone records. United States v. Candelario, 2022 U.S. Dist. LEXIS 199195 (D. … Continue reading

Posted in Cell phones, Curtilage, Ineffective assistance, Subpoenas / Nat'l Security Letters | Comments Off on D.Me.: DEA could subpoena records investigating robbery of a marijuana dispensary

NY2: Trial court didn’t deny due process by deciding suppression motion on a ground not argued by state, except for being just wrong on the law

The trial court did not deny due process by deciding the suppression issue on an alternative ground not advanced by the state below. The problem is, however, that the record does not support the result below, and it is reversed. … Continue reading

Posted in Consent, Due process, Ineffective assistance, Reasonableness | Comments Off on NY2: Trial court didn’t deny due process by deciding suppression motion on a ground not argued by state, except for being just wrong on the law

D.D.C.: In motion to withdraw plea, waived motion to suppress was arguable and IAC

Here, failure to file a motion to suppress on the obtaining defendant’s passcode for his cell phone was ineffective assistance of counsel. At this point, it was debatable, and it should have been raised. The government had the phones, and … Continue reading

Posted in Cell phones, Ineffective assistance, Privileges | Comments Off on D.D.C.: In motion to withdraw plea, waived motion to suppress was arguable and IAC

CA6: Search of building next door to def’s building wasn’t reason to suppress def’s search

Officers with a search warrant for 8537 Old Rutledge Pike, Knox County, Tennessee also searched what they believed was an outbuilding at 8533 with a power cord running between them with no indication it was different property. At worst, this … Continue reading

Posted in § 1983 / Bivens, Ineffective assistance, Overseizure, Probable cause, Scope of search | Comments Off on CA6: Search of building next door to def’s building wasn’t reason to suppress def’s search

FL2: Def counsel not ineffective where search evidence not objected to had no apparent prejudice to case

Defense counsel was ineffective in not moving to suppress one piece of evidence, but defendant can’t show he was prejudiced by it on the case as a whole. Szewczyk v. State, 2022 Fla. App. LEXIS 7180 (Fla. 2d DCA Oct. … Continue reading

Posted in Franks doctrine, Ineffective assistance, Plain view, feel, smell | Comments Off on FL2: Def counsel not ineffective where search evidence not objected to had no apparent prejudice to case

OH: Exclusionary rule does not apply to statutory violations, here a parole search

Defendant signed a consent to parole search form, but the statute says it has to be on reasonable grounds. Here, even if the statute was violated, the exclusionary rule applies to constitutional violations, not statutory ones. State v. Campbell, 2022-Ohio-3626, … Continue reading

Posted in Exclusionary rule, Good faith exception, Ineffective assistance, Probation / Parole search | Comments Off on OH: Exclusionary rule does not apply to statutory violations, here a parole search

OH3: An expert witness is not required on the staleness of CP

There is no requirement of an expert in child pornography investigation to be an affiant to provide information about lack of staleness. Also, this was raised for the first time on appeal. State v. Benedict, 2022-Ohio-3600, 2022 Ohio App. LEXIS … Continue reading

Posted in DNA, Ineffective assistance, Staleness | Comments Off on OH3: An expert witness is not required on the staleness of CP

D.Neb.: Eviction of unruly hotel guest is loss of REP in room as soon as decision is made, even without statute authorizing it

Eviction of an unruly guest from a motel or hotel results in a loss of the renter’s reasonable expectation of privacy even if there is no statute governing it. Thus, the proprietor can hand over the keys to the police … Continue reading

Posted in Automobile exception, Ineffective assistance, Reasonable expectation of privacy | Comments Off on D.Neb.: Eviction of unruly hotel guest is loss of REP in room as soon as decision is made, even without statute authorizing it

S.D.N.Y.: Court has no jurisdiction to interfere with a laptop search initiated in another district

“The Court will not interfere with the Government’s review of the laptop pursuant to a search warrant obtained from a different Court — except to require the Government to submit a status update no later than October 28, 2022. As … Continue reading

Posted in Burden of proof, Ineffective assistance, Issue preclusion | Comments Off on S.D.N.Y.: Court has no jurisdiction to interfere with a laptop search initiated in another district

GA: Officers with an arrest warrant can enter the backyard, too

Officers with an arrest warrant for defendant at his place were permitted to enter the backyard too, where evidence was seen and seized. Jones v. State, 2022 Ga. LEXIS 256 (Sep. 20, 2022). Not mentioning in the affidavit for search … Continue reading

Posted in Arrest or entry on arrest, Curtilage, Ineffective assistance, Informant hearsay, Reasonable suspicion | Comments Off on GA: Officers with an arrest warrant can enter the backyard, too

TN: No IAC: strategic choice to distance def from premises

Defense counsel wasn’t ineffective for not challenging the search of the premises. The defense at trial was that defendant was merely a guest who didn’t have control of the stuff found there. To link defendant more to the premises was … Continue reading

Posted in Burden of pleading, Ineffective assistance, Standing | Comments Off on TN: No IAC: strategic choice to distance def from premises

D.C.Cir.: Question of fact remains on whether PC dissipated before second handcuffing

“We reverse the district court’s grant of summary judgment on the false arrest claims for two reasons. First, there is a genuine dispute of material fact as to whether probable cause for the simple assault charge dissipated before Lin was … Continue reading

Posted in Automobile exception, Ineffective assistance, Issue preclusion, Probable cause | Comments Off on D.C.Cir.: Question of fact remains on whether PC dissipated before second handcuffing

CA8: Pre-Jardines dog sniff at apt door saved by GFE

Pre-Jardines dog sniff at the door of an apartment was valid when it happened, so it is saved by the good faith exception under Davis. United States v. Perez, 2022 U.S. App. LEXIS 22977 (8th Cir. Aug. 18, 2022). “In … Continue reading

Posted in Dog sniff, Good faith exception, Ineffective assistance, Reasonable suspicion | Comments Off on CA8: Pre-Jardines dog sniff at apt door saved by GFE

M.D.Pa.: Air freshener in a non-smoking rental car factor in RS

“[T]he air freshener in a non-smoking rental car was an early and legitimate basis for suspicion to be aroused. In general, the use of air fresheners is a recognized factor contributing to reasonable suspicion.” United States v. Hawari-Rasulullah, 2022 U.S. … Continue reading

Posted in Arrest or entry on arrest, Ineffective assistance, Reasonable suspicion, Staleness | Comments Off on M.D.Pa.: Air freshener in a non-smoking rental car factor in RS

D.Minn.: Police delay in responding to 911 call in part belied exigency

There no longer was exigency, in part here from the police delay in responding to 911 call, and what was observed was innocuous. No exigency on the totality. Cotten v. Miller, 2022 U.S. Dist. LEXIS 139360 (D. Minn. Aug. 5, … Continue reading

Posted in Emergency / exigency, Ineffective assistance, Probation / Parole search, Search incident | Comments Off on D.Minn.: Police delay in responding to 911 call in part belied exigency

FL2: Civil contempt for not providing cell phone passcode affirmed; 4A issue not yet ripe because no charges yet filed

“Finding no merit in any of Marvin Harris’ arguments, we affirm the order below holding him in indirect civil contempt for refusing to provide the passcode to access his iPhone in connection with a search warrant.” He has yet to … Continue reading

Posted in Cell phones, Consent, Ineffective assistance | Comments Off on FL2: Civil contempt for not providing cell phone passcode affirmed; 4A issue not yet ripe because no charges yet filed

N.D.W.Va.: A SW for those suspected of sending in drug-laced fake legal papers

For defense lawyers wondering about the increase in searches of legal mail, this case involved a search warrant of the house of someone suspected to sending in drug laced fake legal papers into federal prisons. Barker v. United States, 2022 … Continue reading

Posted in Ineffective assistance, Rule 41(g) / Return of property | Comments Off on N.D.W.Va.: A SW for those suspected of sending in drug-laced fake legal papers