Category Archives: Ineffective assistance

CA11: Govt waives abandonment by not pleading it in the district court

Government waives abandonment by not pleading it in the district court. United States v. Ross, 2020 U.S. App. LEXIS 21028 (11th Cir. July 7, 2020), on remand from United States v. Ross, 2020 U.S. App. LEXIS 19642 (11th Cir. June … Continue reading

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AK: Misspelling of target name in a warrant to record a conversation didn’t void the warrant when right person was recorded

Officers obtained a warrant under state law to record a future conversation with defendant about his alleged sexual assault of a passed out woman, but they didn’t have the spelling right (Darren, not Darin) and a wrong middle initial. There … Continue reading

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D.Del.: Mere denials of the facts doesn’t make a Franks claim

Just saying in a motion to suppress the defendant “‘denies telling law enforcement that additional drugs could be found within his apartment’ and ‘disputes the accuracy’ of the statement that officers detected the odor of burnt marijuana in the apartment” … Continue reading

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CA8: Def didn’t show standing in rental car with blank rental agreement

Defendant’s possession of a blank rental agreement fell short of showing his standing to challenge the search of the car he was driving. Defendant has to go forward on standing somehow, and Byrd doesn’t say how. United States v. White, … Continue reading

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CA10: Flight from a stop permitted officer to chase def onto his property without a SW

“Officer Estrada’s reasonable suspicion ripened into probable cause when Shelton attempted to flee, thus giving rise to the exigent circumstances necessary for Officer Estrada to pursue Shelton onto the property without a warrant.” United States v. Shelton, 2020 U.S. App. … Continue reading

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OH2: Furtive movement during knock-and-talk justified entry

Officers entered an apartment building with the consent of one of the tenants when they were investigating a threat with a firearm by one of the tenants. Their knock-and-talk at defendant’s door was reasonable, as was ordering him to open … Continue reading

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RI: Reasonable use of force to take inmate’s DNA under SW wasn’t grounds for suppression

The trial court erred in granting defendant’s motion to suppress the taking of his DNA by force under a search warrant when he refused to cooperate. He already had a reduced expectation of privacy in the jail, and the state’s … Continue reading

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D.Md.: Even if defense counsel had pursued a motion to suppress and won, the proof was so strong there was no Strickland prejudice

Even if defendant on post-conviction could have shown that a motion to suppress would have been granted if made, he can’t show prejudice because the proof at trial showed he almost certainly would have been convicted even without that evidence. … Continue reading

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CA2: IAC claim not proper on motion for new trial

The district court acted within its discretion to deny a motion for new trial on an ineffective assistance of counsel claim for not moving to suppress before the trial. Defendant can raise it in post-conviction. United States v. Atuana, 2020 … Continue reading

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W.D.Tenn.: Affidavit was conclusory as to drugs at drug dealer’s home [but it’s easy to fix next time]

The affidavit for search warrant failed to show nexus between defendant’s alleged drug dealing a month earlier and his residence. “The only information included in the affidavit to support this conclusory belief is the fact that Defendant, who happens to … Continue reading

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E.D.Mo.: Search incident of backpack cut off handcuffed def was still proper

“In the instant case, as in Perdoma, even though Hill was handcuffed at the time of the search, the circumstances leading up to the search justified the warrantless search. Hill, the subject of a valid arrest warrant, appeared to be … Continue reading

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CA2: PC and innocence of the crime charged are different things; a search incident to arrest can still be valid

Officers had probable cause to arrest for possession of marijuana despite the fact it later turned out he was innocent of possession. The inventory of his backpack was still valid. United States v. Bignon, 2020 U.S. App. LEXIS 15972 (2d … Continue reading

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CA9: Not clearly established that County of Riverside violation warrants suppression

It was not clearly established that a County of Riverside violation of allegedly delaying a probable cause determination to gather more evidence was subject to suppression. Even Riverside doesn’t say that it is. Thus, the district court’s determination counsel wasn’t … Continue reading

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IA: 4A claim not properly made in motion for new trial; denied so it can come via post-conviction proceeding

Fourth Amendment claim made in motion for new trial is denied without prejudice to litigate it in a post-conviction proceeding. State v. Bell, 2020 Iowa App. LEXIS 521 (May 13, 2020). Defense counsel wasn’t ineffective for not pursuing a motion … Continue reading

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OH9: When trial court relies on video of stop and search, failure to include in record on appeal is waiver

The trial court relied on the video of the stop and search, but it was not included by the defense in the record on appeal. This is considered waiver. State v. Hays, 2020-Ohio-2919, 2020 Ohio App. LEXIS 1869 (9th Dist. … Continue reading

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MI Const. search and seizure provision is not coextensive with 4A

The Michigan Supreme Court sets aside part of a Court of Appeals decision that says that the Michigan Constitution’s search and seizure provision is coextensive with the Fourth Amendment because it’s not. Otherwise, it declines review of the decision. People … Continue reading

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