Category Archives: Standards of review

CA11: No REP in a police interview room where def was recorded confessing to his wife

There was no reasonable expectation of privacy in a police interview room where defendant was recorded confessing to his wife. Lundberg v. Secretary, Fla. Dep’t of Correction, 2020 U.S. App. LEXIS 9953 (11th Cir. Mar. 31, 2020). Police received a … Continue reading

Posted in Probable cause, Reasonable expectation of privacy, Standards of review | Comments Off on CA11: No REP in a police interview room where def was recorded confessing to his wife

OH9: Medical records allegedly unlawfully seized weren’t in appellate record, so prejudice couldn’t be determined; held waived

Defendant claimed his medical records were unlawfully seized and admitted at evidence as an admission at this DUI trial. Without them in the appellate record, the appellate court can’t determine prejudice. Thus, this is waived. State v. Miller, 2020-Ohio-1209, 2020 … Continue reading

Posted in Plain view, feel, smell, Standards of review | Comments Off on OH9: Medical records allegedly unlawfully seized weren’t in appellate record, so prejudice couldn’t be determined; held waived

PA: Changing search argument between trial court and appeal is waiver

Changing the nature of the suppression claim between the trial court and appeal is a waiver. There was a fact dispute on the reason for inventory which was resolved against the defendant. Commonwealth v. Peak, 2020 Pa. Super. LEXIS 255 … Continue reading

Posted in § 1983 / Bivens, Standards of review | Comments Off on PA: Changing search argument between trial court and appeal is waiver

OH9: Pro se 4A argument never presented to trial court not considered

Pro se argument that the search warrant was invalid wasn’t preserved by a motion to suppress in the trial court. State v. Daniels, 2020-Ohio-1176, 2020 Ohio App. LEXIS 1097 (9th Dist. Mar. 30, 2020).* Plaintiff’s Fourth Amendment claim (among others) … Continue reading

Posted in Burden of pleading, Standards of review | Comments Off on OH9: Pro se 4A argument never presented to trial court not considered

S.D.Ohio: No REP in nonlegal mail sent from jail where witness tampering was suspected

Defendant had no reasonable expectation of privacy in nonlegal mail sent from jail where he was suspected of tampering with witnesses (collecting cases). The policy was already well established (if that matters). United States v. Chivers, 2020 U.S. Dist. LEXIS … Continue reading

Posted in Good faith exception, Prison and jail searches, Probable cause, Standards of review | Comments Off on S.D.Ohio: No REP in nonlegal mail sent from jail where witness tampering was suspected

M.D.Ala.: Lack of a video didn’t undermine the USMJ’s credibility finding

“The lack of a video under these circumstances is not a basis for rejecting the Magistrate Judge’s credibility finding.” Defendant’s becoming loud and obnoxious when asked to leave justified a frisk. United States v. Tymes, 2020 U.S. Dist. LEXIS 47638 … Continue reading

Posted in Informant hearsay, Reasonable suspicion, Standards of review | Comments Off on M.D.Ala.: Lack of a video didn’t undermine the USMJ’s credibility finding

GA: Failure to bring up record of suppression hearing held instead in a connected case was waiver

Defendant was charged under indictment 1 and had a suppression hearing. He was reindicted in indictment 2 and went to trial in that case. When he appealed, the record of conviction under indictment 2 came up for appeal and no … Continue reading

Posted in Privileges, Standards of review | Comments Off on GA: Failure to bring up record of suppression hearing held instead in a connected case was waiver

E.D.Wis.: No REP child porn sent by Facebook Messenger won’t be retransmitted to police by Facebook

There is no reasonable expectation of privacy in child pornography uploaded to Facebook Messenger. Even treating it as email (Warshak), the email provider can turn child pornography over to law enforcement when it is transmitted. Then a further search warrant … Continue reading

Posted in Reasonable expectation of privacy, Reasonable suspicion, Social media warrants, Standards of review | Comments Off on E.D.Wis.: No REP child porn sent by Facebook Messenger won’t be retransmitted to police by Facebook

E.D.Tex.: Conclusory objections to R&R are denied

Conclusory objections to the R&R on this search issue are overruled. United States v. Wilson, 2020 U.S. Dist. LEXIS 36571 (E.D. Tex. Mar. 3, 2020). Feeling a firearm during a patdown is plain feel. United States v. White, 2020 U.S. … Continue reading

Posted in Arrest or entry on arrest, Plain view, feel, smell, Probable cause, Standards of review | Comments Off on E.D.Tex.: Conclusory objections to R&R are denied

CA5: When appealing PC and GFE, both have to be briefed on appeal or it will be affirmed

When the district court decides a Fourth Amendment case on probable cause and good faith exception, counsel on appeal has to brief both issues. Failure to brief the good faith exception here results in affirmance by waiver of the issue. … Continue reading

Posted in Good faith exception, Standards of review | Comments Off on CA5: When appealing PC and GFE, both have to be briefed on appeal or it will be affirmed

FL1: Leon’s “so lacking in indicia of probable cause” doesn’t seek to determine whether PC actually exists; it’s whether it is conclusory and “bare bones”

Leon’s “so lacking in indicia of probable cause” doesn’t seek to determine whether probable cause actually exists. It’s whether the affidavit is so conclusory it is “bare bones.” Wingate v. State, 2020 Fla. App. LEXIS 1369 (Fla. 1st DCA Feb. … Continue reading

Posted in Good faith exception, Standards of review | Comments Off on FL1: Leon’s “so lacking in indicia of probable cause” doesn’t seek to determine whether PC actually exists; it’s whether it is conclusory and “bare bones”

CA5: When USMJ’s findings are based on PC and GFE, def must appeal both or be subject to plain error, and here it’s not

When the USMJ rules on both probable cause and the good faith exception, the objections have to go to both. Here, defendant only objected to the probable cause finding and not the application of the good faith exception, so the … Continue reading

Posted in Arrest or entry on arrest, Standards of review | Comments Off on CA5: When USMJ’s findings are based on PC and GFE, def must appeal both or be subject to plain error, and here it’s not