Category Archives: Standards of review

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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MO: Recording def’s conversation with attorney in police station interview room violated 6A and privilege; mandamus granted against unsealing

Defendant’s attorney met him at the police station to confer, and they put them in an interview room which recorded their meeting. The trial court appointed a special master to review it. The recording violated defendant’s attorney-client privilege and right … Continue reading

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OH6: Challenge to credibility of one witness at suppression hearing wasn’t the PC challenge made on appeal

A challenge in the trial court that one of the officers wasn’t credible isn’t the same argument as there being a failure of probable cause. Therefore, the probable cause issue hasn’t been preserved. State v. Gibbs, 2018-Ohio-1549, 2018 Ohio App. … Continue reading

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OR: State’s inventory argument wasn’t presented during the suppression hearing, so it’s waived

The state’s inventory argument was not presented during the suppression hearing, and it can’t rely on that argument on appeal. State v. Steele, 290 Ore. App. 675, 2018 Ore. App. LEXIS 41 (Mar. 7, 2018). By letting the CI into … Continue reading

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E.D.N.C.: Mere disagreement with state court conclusion on 4A claim doesn’t overcome Stone v. Powell bar

Defendant litigated his search in state court and lost in the trial court and on appeal. He filed a habeas petition. “Petitioner’s disagreement with the ultimate disposition of his Fourth Amendment claim does not indicate he was not given a … Continue reading

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CA9: Pro se ptf’s allegation that the officers “beat the crap out of” him was not too vague and conclusory to support an excessive force claim

“[T]he allegation that the officers ‘beat the crap out of’ plaintiff was [not] too vague and conclusory to support a legally cognizable claim. The panel held that plaintiff’s use of a colloquial, shorthand phrase made plain that he was alleging … Continue reading

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MA: Alternative inference to facts not drawn by hearing judge doesn’t permit reversal

An alternative interpretation of a witness’s testimony at a suppression hearing not drawn by the judge hearing the motion doesn’t permit reversal. Commonwealth v. Gonzalez, 2018 Mass. App. LEXIS 28 (Mar. 12, 2018).* Plaintiff’s complaint against a judge for an … Continue reading

Posted in Ineffective assistance, Standards of review | Comments Off on MA: Alternative inference to facts not drawn by hearing judge doesn’t permit reversal