Category Archives: Standards of review

E.D.N.C.: Trial objection was 5A and Miranda; 4A claim waived and can’t be raised post-trial

Defendant’s trial objection was based on Miranda and the Fifth Amendment. No Fourth Amendment claim was made so it is waived and post trial briefing is too late. United States v. Horton, 2018 U.S. Dist. LEXIS 201898 (E.D. N.C. Nov. … Continue reading

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D.N.M.: Parking across def’s driveway wasn’t his seizure when he was hiding under a trailer

The officer parking across defendant’s driveway wasn’t his seizure. Defendant wasn’t seized until he came out from under a trailer. When he was seized, it was with reasonable suspicion. United States v. Shelton, 2018 U.S. Dist. LEXIS 197713 (D. N.M. … Continue reading

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W.D.La.: Officers’ subjective belief in def’s standing at time of search isn’t material to the court’s determination on objective facts

At the time of the search, officers believed defendant had standing in the place searched, but that’s not relevant to the court’s determination. “Federal agents were aware of Defendant and believed that he lived in the residence in question. But … Continue reading

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CA4: Def’s cross of officer at trial on SW affidavit “opened the door” to def’s priors

Defendant’s cross examination of the officer who authored the affidavit for the search warrant to attack his credibility by the affidavit “opened the door” to defendant’s other crimes which were admitted under 404(b) on the government’s request on redirect. United … Continue reading

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CA11: Rule 60 motion on old 2255 rejected for res judicata: the SW issues were litigated in 2010

Defendant filed a FRCP 60 motion to alter the judgment in his 2255 where he’d already lost in 2010 on various issues, including a search issue. The judgment is summarily affirmed as res judicata. United States v. Dortch, 2018 U.S. … Continue reading

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Unrefuted findings of fact on consent are binding on appeal

Defendant was a reported drug overdose, and police and EMTs responded. With a dose of Narcan, she came to, talked, and was taken to the hospital. Meanwhile, there was a plain view, and it was valid. Defendant’s credibility argument that … Continue reading

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OH6: SW with nighttime search authorization can be executed in daytime, too

A search warrant with a nighttime search authorization can be executed in the daytime, too. State v. Flores, 2018-Ohio-3980, 2018 Ohio App. LEXIS 4307 (6th Dist. Oct. 1, 2018) [Daytime warrant execution is just safer. That’s why there’s a high … Continue reading

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LA1: Changing suppression issue on appeal from lack of PC to arrest to an unreasonable search is waiver of the issue

Defendant’s motion changed from probable cause to arrest to whether there was an unreasonable search and seizure between the suppression hearing and the appeal. Thus, the issue for appeal wasn’t presented to the trial court, so it’s not preserved for … Continue reading

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CA7: Considering that SWs are entitled to deference, the strong inference here doesn’t have to be proved

In a child pornography starting as a fake child enticement case: “Scott assumes that on appeal we will make an independent (de novo) assessment of probable cause, ignoring the state judge’s finding. We will not. The decision of the judge … Continue reading

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OH7: State can’t raise alternative argument on appeal not presented to trial court

Defendant’s traffic stop was unreasonable because there was no objective, let alone good faith, basis for the stop. There were conflicting traffic signs at the intersection, but they didn’t apply to appellant in his lane. Also, the state could not … Continue reading

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GA: SW obviates need to follow the hearing provisions of the Georgia Animal Protection Act which has provision for impoundment and return of animals seized under the Act

The Georgia Animal Protection Act has provision for impoundment and return of animals seized by the state. When a search warrant is used, as here, that provision doesn’t apply. Bramblett v. Habersham County, 2018 Ga. App. LEXIS 399 (June 21, … Continue reading

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CA7: “This is a hornbook example of how to waive an argument on appeal.”

“This is a hornbook example of how to waive an argument on appeal.” The search issue presented on appeal was never presented to the trial court. “[P]arties cannot conjure up brand new legal theories on appeal like this. Failing to … Continue reading

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