Category Archives: Ineffective assistance

D.Conn.: 2255 isn’t the remedy for return of property; it’s Rule 41(g)

Defense counsel isn’t ineffective for not appealing a conviction when the only real remedy he seeks is for return of property which would be by a Rule 41(g) motion which hasn’t been filed. Dismissed without prejudice. Green v. United States, … Continue reading

Posted in Ineffective assistance, Rule 41(g) / Return of property | Comments Off

D. Md.: Def’s 2255 supplemental Franks challenge has a failure of a proffer of evidence

Defendant had a Franks challenge and lost. One 2255 claim is that if defense counsel investigated more, it would have been a better Franks motion, but he fails to state what else would have been found to make it better. … Continue reading

Posted in Franks doctrine, Ineffective assistance, Probable cause | Comments Off

D.N.M.: Inventory was reasonable on the totality, so officers’ actual intent doesn’t matter

Defendant was arrested at someone else’s home, and he had a bag. The homeowner wouldn’t take responsibility for the bag, so it went with defendant, and its inventory was reasonable on the totality. “Thus, whether or not the Officers’ testimony … Continue reading

Posted in Ineffective assistance, Inventory | Comments Off

CA11: Mistake in apt number in SW wasn’t fatal flaw because of “rich detail” describing the apt door

The search warrant had the wrong apartment number, but the location of the apartment was described in “rich detail,” including that the door had numerous stickers. Therefore, defense counsel wasn’t ineffective for not challenging the search warrant. United States v. … Continue reading

Posted in Ineffective assistance, Particularity | Comments Off

N.D.Iowa: There is no constitutional difference between a drug dog’s “alert” and “indication”

There is no constitutional difference between a drug dog’s “alert” and “indication.” The dog’s actions and what it means to the handler are just a factor in probable cause to search. United States v. Herbst, 2018 U.S. Dist. LEXIS 6516 … Continue reading

Posted in Dog sniff, Ineffective assistance, Nexus | Comments Off

W.D.N.C.: Def doesn’t have standing in a rental car, and the court is bound by existing authority

“According to the defendant’s motion, he was using the rental car with permission from its authorized driver. (Doc. No. 16: Motion at 1). However, he has not alleged that he was listed as an authorized driver on the rental agreement … Continue reading

Posted in Ineffective assistance, Standing | Comments Off

OH2: Not clearly erroneous for court to rely on dashcam over officer’s testimony re stop

The trial court could rely on the dashcam video over the officer’s testimony where there was an apparent contradiction. State v. Wilson, 2017-Ohio-9317, 2017 Ohio App. LEXIS 5816 (2d Dist. Dec. 29, 2017). Defendant’s stop was based on reasonable suspicion … Continue reading

Posted in Ineffective assistance, Standards of review | Comments Off

KS declines to decide whether odor of MJ on the person is PC because here there was more than just that

Defendant didn’t dim headlights and officers stopped the car suspecting inattentive driving. The smell of marijuana coming from the car was obvious. “We decline the State’s offer to embark on a new legal proposition that would allow Kansas law enforcement … Continue reading

Posted in Ineffective assistance, Plain view, feel, smell | Comments Off

LA: Def’s phone records were obtained by valid court order so defense counsel couldn’t be ineffective for not challenging it

Defendant’s phone records were obtained by court order. Therefore, his counsel wasn’t ineffective for not challenging the state’s obtaining them. State v. Pram, 2017 La. LEXIS 2958 (Dec. 15, 2017). Defendant first lied about his name, but an officer there … Continue reading

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DE: SW materials reviewed on PCR to find no motion to suppress would be granted

Defendant was charged with rape of his daughter occurring daily for years. Defense counsel saw no reason to file a motion to suppress the search warrants for the house for the vibrator the victim described was used on her. Reviewing … Continue reading

Posted in Burden of pleading, Ineffective assistance, Stingray / Hailstorm | Comments Off

E.D.Wis.: Furtive movement toward car during stop justified protective frisk of car

Defendant’s furtive movements toward his car and his agitated state justified a protective frisk of the car. United States v. Vaccaro, 2017 U.S. Dist. LEXIS 205804 (E.D. Wis. Sept. 18, 2017), adopted, 2017 U.S. Dist. LEXIS 204625 (E.D. Wis. Dec. … Continue reading

Posted in Ineffective assistance, Protective sweep, Reasonable suspicion | Comments Off

CA8: After exigency for entry abated, police had consent from def’s wife to remain on premises

Exigency supported the police entry into defendant’s home because of concern for safety of the children and a domestic dispute. After the entry and the abatement of the exigency, defendant’s wife consented to the officers staying in the house. United … Continue reading

Posted in Consent, Emergency / exigency, Ineffective assistance | Comments Off