Category Archives: Standards of review

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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OH12: Without def bringing up a suppression hearing transcript, findings uncontradicted

With no transcript of the suppression hearing, there’s nothing to contradict the trial court’s findings. State v. Harding, 2017-Ohio-8930, 2017 Ohio App. LEXIS 5373 (12th Dist. Dec. 11, 2017). Defense counsel’s failure to file a motion to suppress wasn’t ineffective … Continue reading

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AZ: State didn’t argue GFE and court gives it a pass

The state didn’t raise the good faith exception in the trial court, but the court applies the “we can affirm on any ground” rule to apply it anyway. State v. Weakland, 2017 Ariz. App. LEXIS 202 (Nov. 28, 2017):

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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

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