Category Archives: Standards of review

OH6: Trial court didn’t commit plain error in not inquiring into drug dog’s training when defense didn’t

The trial court did not commit plain error in not inquiring into the drug dogs training when defendant didn’t raise it. State v. Jones, 2019-Ohio-3704, 2019 Ohio App. LEXIS 3777 (6th Dist. Sept. 16, 2019). The particulars of a drug … Continue reading

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CA11: 4A IAC claim fails on merits of search issue

Petitioner’s IAC claim against defense counsel for not pursuing a Fourth Amendment claim was properly denied for lack of standing on the merits. Virgil v. Sec’y, Dept. of Corrections, 2019 U.S. App. LEXIS 23777 (11th Cir. Aug. 8, 2019).* Defendant’s … Continue reading

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VA: 4A claim waived for failure to fully brief it

Defendant’s Fourth Amendment claim on appeal was waived by failure to fully argue it, as in “Fourth Amendment rights were violated because ….” Ducharme v. Commonwealth, 2019 Va. App. LEXIS 187 (Aug. 6, 2019):

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CA4: Denial of post-trial Franks motion here subject to plain error review

Defendant’s motion for a Franks hearing came post-trial. The court of appeals declines to deny it for lack of timeliness and denies it on the merits. The Franks burden is heavy, and the record is scant. So, he’s relegated to … Continue reading

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LA4: Constructive possession to convict isn’t the test for PC; suppression order reversed

The trial court erred in granting the motion to suppress a gun, essentially conflating the probable cause inquiry and sufficiency of evidence to convict the defendant at trial of possession. State v. LangState v. LangState v. Lang, 2019 La. App. … Continue reading

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LA3: State showed abandonment of car at hearing even though trial court decided on other grounds

The state argued and showed abandonment, but the trial court didn’t decide it. On appeal, the court finds that defendant abandoned his car after a police chase and he bailed out of the car and ran. State v. Guidry, 2019 … Continue reading

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ID: Right-result, wrong-theory rule requires preservation of the alternative argument

The state can’t use the right-result, wrong-theory rule when it doesn’t preserve the alternative argument to give the other party the opportunity to develop the record. State v. Hoskins, 2019 Ida. LEXIS 108 (June 13, 2019). The evidence available to … Continue reading

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N.D.Iowa: Suppression hearing review isn’t de novo; it’s whether there is a substantial basis for finding PC

The district court’s duty at a suppression hearing is not de novo review of probable cause – it’s whether there is substantial evidence to support the conclusion of the issuing magistrate that there was probable cause. United States v. Mohring, … Continue reading

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CA8: Hotel staff photographed evidence of drug use in room which corroborated CI

The information in the search warrant application was sufficient to show a fair probability that contraband or evidence of a crime would be found in a hotel room registered to a known drug user who had recently tested positive for … Continue reading

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W.D.Wash.: A potential claim of excessive force during a search doesn’t justify discovery of other alleged incidents of excessive force during searches

Defendant plans a suppression motion claiming that the search was invalid for use of excessive force during the search. He seeks discovery of other allegations of excessive force during searches by the officers, and it’s denied as speculative. United States … Continue reading

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CO: Law of the case doesn’t bar consideration of undecided arguments to support a search

Law of the case isn’t always completely binding but usually is, and it certainly permits the trial court to consider other issues not decided in the original appeal against suppression of the evidence. People v. Morehead, 2019 CO 48, 2019 … Continue reading

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AK: Can’t argue one 4A theory to trial court and another to appellate court

In the trial court, defendant argued that the seizure of his clothing in a hospital room was not a valid plain view. On appeal, however, he argues that entry into the hospital room itself was unreasonable. One can’t change the … Continue reading

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