Category Archives: Standards of review

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

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NE: Because of direct evidence def was involved in crime, computer search history was harmless error, if error at all

Defendant challenged the search for lack of probable cause of the search history of his computer that produced evidence he searched for violent pornographic videos that matched how the victim was killed. There was direct evidence he was involved in … Continue reading

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OH4: Changing argument from legality of patdown to plain feel was waiver

Defendant’s appellate argument changed from whether there was reasonable suspicion for a patdown to conceding the patdown was legal but the plain feel of a hard object found in her vagina was not. That’s waiver of the argument. State v. … Continue reading

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NM: Trial court found truth between dashcam video and the testimony of the officer and the def; still entitled to deference on appeal

The trial court considered the dashcam and the officer’s and defendant’s testimony because the dashcam wasn’t conclusive: “But I think it just goes to show you really need to review the video in every case. And in this case, after … Continue reading

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OH2: Not clearly erroneous for court to rely on dashcam over officer’s testimony re stop

The trial court could rely on the dashcam video over the officer’s testimony where there was an apparent contradiction. State v. Wilson, 2017-Ohio-9317, 2017 Ohio App. LEXIS 5816 (2d Dist. Dec. 29, 2017). Defendant’s stop was based on reasonable suspicion … Continue reading

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MO: Where 2 SWs authorize search, both have to be suppressed for def to prevail; challenging only one is moot

There were two search warrants authorizing the search of defendant’s computers for child pornography. He challenged the second but not the first, and that makes his argument moot. State v. Cato, 2017 Mo. App. LEXIS 1298 (Dec. 12, 2017). A … Continue reading

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