Category Archives: Ineffective assistance

TX: Totality of circumstances applies to exigency on warrantless seizure of cell phone

“Rather than announcing a categorical rule that police may never seize personal property simply because a criminal suspect knows he is a suspect, the court of appeals should have analyzed under the totality of the circumstances whether law enforcement’s seizure … Continue reading

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CA9: “Clearly established law” in one sentence

“Cardenas has not identified any case holding that police officers violated the Fourth Amendment by making an arrest under similar circumstances, and we are not aware of any such case.” Cardenas v. Saladen, 2023 U.S. App. LEXIS 5091 (9th Cir. … Continue reading

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E.D.Ky.: Failure to cross-examine at trial on some contradictions from SW affidavit was not IAC

Defendant’s 2255 ineffective assistance of counsel claim in part challenged defense counsel’s failure to cross-examine over contradictions in a search warrant affidavit by the witness. The government doesn’t address this, and assuming it was defective performance, the court finds a … Continue reading

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CA9: Denying owner access to an impounded car for 30 days is an unreasonable seizure

Denying access to one’s car for 30 days after impoundment without justification was an unreasonable seizure under the Fourth Amendment. Untalan v. Stanley, 2023 U.S. App. LEXIS 4070 (9th Cir. Feb. 22, 2023). CI information led to surveillance then two … Continue reading

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AR: Search incident to sex offense produced microSD cards that could be seized

Defendant was arrested for a sex offense, and his search incident produced three microSD cards that fell to the ground. They were properly seized and then searched with a warrant finding child porn. Lewis v. State, 2023 Ark. 12, 2023 … Continue reading

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AL: Effective assistance of counsel doesn’t require defense counsel to forecast changes in 4A law

Defense counsel moved to suppress BAC results, but not on Fourth Amendment grounds. The motion was heard and denied. Now defendant claims ineffective assistance for failing to make a Fourth Amendment claim, too. The court finds that the motion was … Continue reading

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E.D.Va.: No 4A right to notice before a search occurs; state search law inapplicable in federal court

Defendant’s Fourth Amendment claim is that he was given no notice that his phones had been searched, citing Virginia law, which is irrelevant in a federal prosecution, even though state officials did all the searching. There’s no constitutional right to … Continue reading

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S.D.Ill.: Running away from a stopped car saying it’s not yours is abandonment

Defendant was stopped for overtinted windows and speeding. He got out and refused to get back in. Finally, he ran away saying the car was not his. That’s abandonment. United States v. Wiley, 2023 U.S. Dist. LEXIS 22439 (S.D. Ill. … Continue reading

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CA6: Allegedly misrepresenting purpose of entry here had no bearing on use of deadly force once inside

Whether the officer lawfully entered the house by misrepresenting his purpose has nothing to do with the objectively justifiable use of deadly force inside. Sawyer v. City of Soddy Daisy, 2023 U.S. App. LEXIS 3108 (6th Cir. Feb. 7, 2023). … Continue reading

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W.D.Tex.: Tasering a suspect before search of the person didn’t taint the search

Tasering a suspect before a search of the person doesn’t taint the search. They were unconnected. United States v. Turner, 2023 U.S. Dist. LEXIS 12453 (W.D. Tex. Jan. 25, 2023).* Defendant in his 2255 doesn’t show ineffective assistance of counsel … Continue reading

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D.N.J.: Civilly committed for NGBRI verdicts have no 4A rights in their cells

The civilly committed for NGBRI verdicts have no Fourth Amendment against cell searches. Lopez v. CEO of Ancora Psychiatric Hosp., 2023 U.S. Dist. LEXIS 12248 (D.N.J. Jan. 24, 2023), citing Glazewski v. Barnett, 2022 WL 2046921, at *3-4 (D.N.J. June … Continue reading

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KY: 21-month delay for SW for cell phone not unreasonable where def in custody

Officers had probable cause and nexus and showed particularity to defendant’s cell phone. He’d previously been accused of recording undressed women and was involved in an upskirting. Here he’d been accused of sex with drugged women and recording some of … Continue reading

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N.D.Iowa: Car transporter has common authority to consent

A car being hauled west was searched on the car hauler’s truck by consent of the hauler. He had common authority to do that. Moreover, defendant’s standing as to the vehicle was tenuous at best. Registration had expired before the … Continue reading

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N.D.Ill.: Border search exception doesn’t permit cell phone search for proof of a prior domestic crime

The border search exception does not apply to searching defendant’s cell phone at Customs for proof of a domestic crime, here mail theft. United States v. Carpenter, 2023 U.S. Dist. LEXIS 11014 (N.D. Ill. Jan. 23, 2023). The drug dog … Continue reading

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E.D.Pa.: Failure to specify in 2255 how 4A was violated is waiver

In a 2255 ineffective assistance claim, “Defendant fails to specify either how his Fourth Amendment rights were violated or what evidence counsel should have sought to suppress.” That alone is enough to deny. It’s denied on the merits, too. United … Continue reading

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CA4: Failure to turn on bodycam before frisk not shown to be in bad faith

Officer’s failure to turn on his bodycam before frisk here doesn’t require an adverse inference of destruction of evidence. Bad faith isn’t shown. United States v. Aguirre-Cuenca, 2023 U.S. App. LEXIS 1105 (4th Cir. Jan. 18, 2023). Defendant’s appeal is … Continue reading

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CA6: New information about a search doesn’t qualify for successor habeas

Alleged new information about the search of defendant’s property doesn’t allege actual innocence and thus is not grounds for a successor habeas. In re Fisher, 2023 U.S. App. LEXIS 677 (6th Cir. Jan. 11, 2023). 2255 petitioner’s ineffectiveness claim on … Continue reading

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N.D.Ill.: City’s destruction of street cam video was not shown to be in bad faith

Defendant’s motion to dismiss for a discovery violation in not timely processing a subpoena for a street corner camera that allegedly would show that defendant’s turn signal was on and the stop was wrong is denied. The city didn’t timely … Continue reading

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FL4: Collective knowledge doctrine with anonymous or confidential sources requires passing details on to fellow officer

When the collective knowledge rule applies to information from an anonymous or confidential source, the officer using the information has to have actual knowledge of the factors supporting its reliability. Zarcadoolas v. Tony, 2023 Fla. App. LEXIS 26 n.3 (Fla. … Continue reading

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CA6: Affidavit circumstantially supported nexus

There was nexus to defendant’s home as a base of operations for drug sales based on circumstantial evidence in the affidavit for warrant. United States v. Pointer, 2022 U.S. App. LEXIS 35506 (6th Cir. Dec. 20, 2022).* The search warrant … Continue reading

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