Category Archives: Ineffective assistance

W.D.Okla.: State habeas direct 4A attack on conviction barred

This habeas petition directly attacked the state search and seizure and that’s barred by Stone v. Powell. West v. Bryant, 2018 U.S. Dist. LEXIS 47497 (W.D. Okla. Mar. 23, 2018).* State habeas petitioner’s effort for a successor habeas petition is … Continue reading

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WA: While driver has a REP, the owner’s consent controls

The driver of a vehicle has a reasonable expectation of privacy in the vehicle, but he assumes the risk that the owner of the vehicle may consent to a search. Here, the officers noticed that the ignition had been punched … Continue reading

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S.D.Cal.: If you’re suing over a SW issued on false allegations, somebody has to put the SW papers in the MSJ pleadings; nobody did, so denied

This is an excessive force and illegal search claim where plaintiff claimed her husband was unreasonable killed in violation of the Fourth Amendment and state law. It also included a claim that the search warrant was obtained by judicial deception. … Continue reading

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OH3: Court declines to extend state const to trash searches

The court declines to extend the state’s constitution to prohibit trash searches permitted by the Fourth Amendment. While other state courts have done so, this state has not yet, and that’s for the state supreme court. Another district had also … Continue reading

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MA: Alternative inference to facts not drawn by hearing judge doesn’t permit reversal

An alternative interpretation of a witness’s testimony at a suppression hearing not drawn by the judge hearing the motion doesn’t permit reversal. Commonwealth v. Gonzalez, 2018 Mass. App. LEXIS 28 (Mar. 12, 2018).* Plaintiff’s complaint against a judge for an … Continue reading

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NY3: Call from DEA to stop def was based on their PC

The officers stopping defendant received a call from the DEA to stop him because he was involved with a place they were searching, having just left with a backpack as the DEA was arriving. The stop was based on their … Continue reading

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N.D.Ohio: No IAC for not raising search issue that would lose on merits by inevitable discovery

“Nevertheless, Petitioner’s arguments for suppression do not succeed. [¶] This is because police ultimately found the firearm and ammunition from an independent source, thus defeating the need for suppression. Under the independent source doctrine, evidence that was ‘initially discovered during … Continue reading

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CA6: Ptf inmate’s bodily privacy not unreasonably violated because female guard saw him in shower

Summary judgment was properly granted against plaintiff’s prison Fourth Amendment claim that his privacy rights were violated because a female guard happened to see him in the shower. He has a limited reasonable expectation of privacy in his bodily privacy … Continue reading

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LA2: Hearsay admissible in suppression hearings; here it was officer’s preliminary hearing testimony which showed exigency

Hearsay is admissible in a suppression hearing. The parties agreed here that the officer’s testimony at the preliminary hearing would be the basis for the suppression hearing, and it shows exigent circumstances for the entry into defendant’s home. State v. … Continue reading

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VA: ABC employee firing for excessive administrative search affirmed

Appellant was a agent of the Virginia ABC who conducted an unreasonable and excessive warrantless search of a licensee’s premises, and he was fired for abuse of authority. He appealed through the state grievance procedure claiming the search was legal, … Continue reading

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S.D.W.Va.: Post-conviction allegation of inadequate cross examination at suppression hearing didn’t state a sufficient claim

Defendant’s 2255 claim that defense counsel didn’t sufficiently cross-examine the government’s witnesses in the suppression hearing didn’t allege ineffective assistance of counsel. Also, defendant didn’t appeal the denial of the suppression motion and pled guilty instead. Thorne v. United States, … Continue reading

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GA: No IAC for not challenging nonprejudicial typo in the SW affidavit

Defense counsel wasn’t ineffective for not filing a motion to suppress the search warrant for defendant’s cell phones for a typographical error on the date of the alleged offense in the application for the warrant. The affidavit was clear what … Continue reading

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