Category Archives: Standards of review

OH12: Def’s petition for discretionary review dismissed for failure to file briefs leaves appellate result intact

The trial court suppressed but the court of appeals reversed. The supreme court granted discretionary review, but it was dismissed for defendant’s failure to file a brief. The case was remanded back to the trial court, and the appellate reversal … Continue reading

Posted in Plain view, feel, smell, Standards of review | Comments Off

NY: Officer safety a mixed question of law and fact with record support; affirmed

“The issue whether ‘the likelihood of a weapon in [defendant's] car [was] substantial and the danger to the … safety [of the officers who stopped that vehicle was] “actual and specific”’ … presents a mixed question of law and fact … Continue reading

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TX4 seemingly applies wrong standard of review to RS

Defendant wasn’t seized just because he and an officer were conversing. On the totality, the trial court reasonably concluded that the officer had reasonable suspicion to continue it and ask for consent to search defendant’s wallet. [The court says, however: … Continue reading

Posted in Reasonable suspicion, Standards of review | Comments Off

NC: Consent sought while officer holding DL wasn’t voluntary because here it was an unlawful seizure

“Defendant’s main argument appears to be that when Officer Sletten failed to return defendant’s identification after finding no outstanding warrants and after the initial reason for the detention was satisfied, he instead requested defendant’s consent to search, the seizure was … Continue reading

Posted in Consent, Seizure, Standards of review | Comments Off

MA: Trial judge’s omission of significant facts made finding of no exigency error

The trial judge’s finding that there were no exigent circumstances is reversed. Her findings of fact omitted serious facts in support of exigency, and thus was clearly erroneous. Commonwealth v. Arias, 2017 Mass. App. LEXIS 148 (Nov. 9, 2017):

Posted in Emergency / exigency, Standards of review | Comments Off

HI: Moving to suppress seizure of pill bottle incident to arrest didn’t cover later search of the bottle; issue waived

Defendant’s challenge to removal of a pill bottle from his person did not preserve a challenge to search of the pill bottle at the police station. “In any event, we conclude that Sado’s argument on appeal is without merit. Officer … Continue reading

Posted in § 1983 / Bivens, Probable cause, Standards of review | Comments Off

VT: Where no testimony supports the trial court’s finding of fact, the finding is clearly erroneous

“One of the findings could be based only on testimony from the officer: ‘Although [defendant's girlfriend] had not expressly stated that [the officer] could come into the house, he interpreted her action as inviting him in.’ There is no testimony … Continue reading

Posted in Reasonable suspicion, Standards of review | Comments Off

MA: Inventory was not shown to be pretextual and was within policy

The suppression hearing judge found the officer credible on the question of whether the inventory was pretextual and concluded it was not. As a credibility determination, it can’t be reversed on appeal. The inventory was otherwise reasonable. Commonwealth v. Ehiabhi, … Continue reading

Posted in Inventory, Standards of review | Comments Off

VA: CoA erred in reversing conviction for 4A error where it didn’t contribute to verdict

The Court of Appeals erred in reversing defendant’s conviction because of an alleged Fourth Amendment error where the uncontested evidence demonstrated beyond a reasonable doubt that a rational juror would have found him guilty without the disputed evidence, because that … Continue reading

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CA6: Def consented to search of person when he came out of bathroom and was accosted by two officers

“Perhaps the last thing one usually expects when exiting the bathroom is to find a police officer on the other side of the door. However, such was the situation Tremaine Cowan discovered when he exited the restroom of a private … Continue reading

Posted in Consent, Reasonable suspicion, Standards of review | Comments Off