Category Archives: Ineffective assistance

NY2: Collective knowledge requires proof of the knowledge

The state relied on the fellow officer rule. “Although there were references to eavesdropping warrants that had been obtained for the defendant’s and her codefendant’s phones, the People inexplicably failed to offer any evidence at the hearing to establish that … Continue reading

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CA5: Motion for return of property erroneously dismissed; pet’r may have no other remedy

The district court erred in dismissing appellant’s petition for return of documents under Rule 41(g) seized under a warrant with alleged attorney-client privileged materials. If no charges are brought, there will be no motion to suppress. Harbor Healthcare Sys., L.P. … Continue reading

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D.Ariz.: 4A IAC claim fails for failing to show how outcome would change and because 4A wasn’t violated

“Movant argues that the warrantless search and seizure of the victim’s blood-stained clothing violated his Fourth Amendment rights and that his trial counsel’s failure to challenge the search and seizure was ineffective assistance because ‘there exists more than a reasonable … Continue reading

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AK: Checking IDs of passengers in traffic stop requires RS under AK Constitution

In a traffic stop, obtaining the passenger’s ID to check for warrants without reasonable suspicion violates the state constitution. Perozzo v. State, 2021 Alas. App. LEXIS 87 (July 9, 2021). Defendant’s ineffective assistance of counsel claim for failure to object … Continue reading

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S.D.W.Va.: Def unaware he was blocked in his car wasn’t “seized”

“Inasmuch as Mr. Mitchem was unaware that his car was blocked given his somnambulant state, the mere blocking of his vehicle is of no Fourth Amendment consequence.” United States v. Mitchem, 2021 U.S. Dist. LEXIS 118388 (S.D. W.Va. June 25, … Continue reading

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CA2: DL address is “reason to believe” where def lives for entry on arrest warrant

Defendant’s DL had the address where the police entered on an arrest warrant, and it led to a plain view. The DL address was “reason to believe” it was his address. United States v. Johnson, 2021 U.S. App. LEXIS 18491 … Continue reading

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OH10: Not challenging SW was strategic choice in self-defense case

Defense counsel wasn’t ineffective for not objecting to the search warrant because it would contradict his claim of self-defense. State v. Messenger, 2021-Ohio-2044, 2021 Ohio App. LEXIS 2017 (10th Dist. June 17, 2021) (see § 60.19) The issue here is … Continue reading

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M.D.Ala.: Post-conviction petitioner has to show he told defense counsel of facts and issues not raised

When challenging defense counsel’s failure to raise an issue in an ineffective assistance of counsel claim, it behooves the defendant to show that defense counsel was told about the issue. Defendant here was aware of the alleged fact he complains … Continue reading

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CA6: Second officer’s running wants and warrants on passenger didn’t delay the first officer’s stop

A second officer running warrants on detainees from a justified vehicle stop did not have anything to do with the original mission of the stop. “Officer Hogan questioned the passenger while Officer Holland dealt with Brewer, and we do not … Continue reading

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CA2: No 4A extraterritorial jurisdiction over Switzerland enforcing its own law against Americans in Switzerland

An extraterritorial seizure of art work and antiquities in Switzerland of American citizens doesn’t involve the Fourth Amendment. International law has not adopted the Fourth Amendment’s probable cause standard. There is no justification shown for applying the Fourth Amendment to … Continue reading

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CA6: Social workers subject to 4A, but these get QI

Social workers are subject to the Fourth Amendment. Here, they used a court order to enter plaintiff’s home. The order wasn’t clear on what information that brought it about or that it was particular. Nevertheless, the social workers get qualified … Continue reading

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S.D.Fla.: Suppression motion issue selection is strategic choice under Strickland

“[C]ounsel was not ineffective as it relates to the search warrants at issue because counsel filed motions to suppress raising multiple arguments, and Movant failed to show that counsel’s strategic choice to pursue certain arguments over others—such as the Fourth … Continue reading

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FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone

Defendant’s victim claimed to the police she was met through a phone app, sexually battered, and robbed. She identified defendant by his truck. “This information would have been enough to obtain a search warrant of Ferguson’s cell phones, even without … Continue reading

Posted in Cell phones, Ineffective assistance, Probable cause, Probation / Parole search, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone

N.-M.: “Health and welfare” check justification for search of off-base housing was shown in IAC claim to be subterfuge

Defense counsel was ineffective for not raising the issue that the “health and welfare” check justification for searching his off-base housing was really a subterfuge for a criminal search. United States v. McCall, 2021 CCA LEXIS 206 (N.-M. Ct. Crim. … Continue reading

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WI: Burning mj in a house is exigency of evidence being destroyed by burning

The smell of burning marijuana is exigent circumstances because the contraband is being destroyed by burning. State v. B.W.R., 2021 Wisc. App. LEXIS 201 (Apr. 28, 2021) (unpublished). Under Birchfield, “An increased penalty for the warrantless blood draw refusal revocation … Continue reading

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MD: Not IAC for defense counsel to confirm witness testimony before filing motion to suppress; which here didn’t matter

Defendant contended the search of his place was before the warrant issued at 12:01 am March 1st. It was not ineffective assistance for counsel to attempt to talk to witnesses before filing a motion to suppress. Even if the police … Continue reading

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M.D.Pa.: Calling for backup before asking motorist for consent was the “Rodriguez moment” but it was with RS

“‘[T]he proper inquiry is not whether a traffic violation actually occurred, but rather whether there are facts presented that would lead a reasonable officer to believe that a violation may have occurred.’ … ‘This standard is not particularly rigorous, as … Continue reading

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CA11: Assuming geo-location info for def’s cell phone was illegally obtained, it was harmless BRD

“We assume without deciding that the district court erred in allowing the admission of the Google geo-location data during trial because it amounted to fruit of the poisonous tree, and no exception applied. Nevertheless, Pendergrass is not entitled to a … Continue reading

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D.Neb.: CI report led to controlled buy and that was PC

A CI with a reliable track record reported defendant was selling ecstacy. That alone was likely at least reasonable suspicion, but then police used him to make a controlled buy, and that was probable cause for the stop. United States … Continue reading

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E.D.Mo.: Constitutionality of window tint statute doesn’t have anything to do with PC for a stop for overtinting

Even if Missouri’s window tint statute was unconstitutional, something in doubt, it wouldn’t have any affect on the reasonableness of defendant’s stop for violating it, and the exclusionary rule would not apply. Factually, the officer said he couldn’t see into … Continue reading

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