Category Archives: Ineffective assistance

FL4: Exigency required finding def’s cell phone to locate a school bus stop shooter

Exigent circumstances in finding a shooter at a school bus stop necessitated the officers pinging the cell phone to locate the shooter. Defense counsel wasn’t ineffective for not challenging the search because it would have failed. Barton v. State, 2018 … Continue reading

Posted in Cell phones, Emergency / exigency, Ineffective assistance | Comments Off on FL4: Exigency required finding def’s cell phone to locate a school bus stop shooter

OH5: Meeting drug buyer, going home, returning to the place of sale was nexus to house

Defendant met a drug buyer, drove to his house, and reunited with the buyer for the transaction. This gives sufficient probable cause for nexus to house. State v. Detamore, 2018-Ohio-297, 2018 Ohio App. LEXIS 274 (5th Dist. Jan. 25, 2018). … Continue reading

Posted in Ineffective assistance, Nexus | Comments Off on OH5: Meeting drug buyer, going home, returning to the place of sale was nexus to house

D.N.M.: Govt’s failure to argue validity of scope of protective sweep before USMJ waived it

The government didn’t raise validity of the scope of the full protective sweep before the USMJ and waived it after the R&R. United States v. Salazar, 2018 U.S. Dist. LEXIS 10212 (D. N.M. Jan. 23, 2018). Defendant’s cell phone search … Continue reading

Posted in Burden of proof, Ineffective assistance, Protective sweep | Comments Off on D.N.M.: Govt’s failure to argue validity of scope of protective sweep before USMJ waived it

E.D.Mo.: Claim that Franks applies because the CI must have been paid and it was omitted is insufficient as speculative

“In his motion to suppress, Davison did not identify any false information included in the affidavit. Rather, Davison alleged only that he believed the CI could have been paid for information and that fact had been omitted from the affidavit. … Continue reading

Posted in Franks doctrine, Ineffective assistance | Comments Off on E.D.Mo.: Claim that Franks applies because the CI must have been paid and it was omitted is insufficient as speculative

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

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

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

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

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

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

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

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