Category Archives: Standards of review

E.D.Tenn.: You post to Facebook at your peril; there is no REP in Facebook “friends”

There is no reasonable expectation of privacy in Facebook posts, no matter who reads then, “friend” or not. He posts to Facebook at his peril. Moreover, he already lost this in the Sixth Circuit. Farrad v. United States, 2021 U.S. … Continue reading

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SD: Failure to put video of stop in record limits review of lack of consent claim

Failure to put the video of defendant’s stop in the record means the court can’t consider it on appeal, and it goes from the trial court’s findings. State v. Slepikas, 2021 SD 43, 2021 S.D. LEXIS 82 (July 21, 2021) … Continue reading

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NJ: “Red flag” petition denial reversed for lack of findings

Denial of red flag petition reversed for lack of findings. “The Extreme Risk Protective Order Act of 2018 (the Act), New Jersey’s ‘red flag law,’ empowers a court to remove firearms from a person who ‘poses a significant danger of … Continue reading

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CA1: Failure to object to R&R was waiver for appeal

Defendant’s failure to object to the R&R on a search claim was waiver of the issue for appeal. United States v. Maldonado-Peña, 2021 U.S. App. LEXIS 19508 (1st Cir. June 30, 2021). Motorist passed out at the wheel and the … Continue reading

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D.Kan.: Seizure under part of SW without PC is suppressed, but remainder valid

“Whitmore’s motions are granted in part and denied in part. Specifically, his motion to exclude evidence from his arrest is denied. With respect to the search of the cell phone, the affidavit provides no probable cause for seeking evidence of … Continue reading

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S.D.W.Va.: Def unaware he was blocked in his car wasn’t “seized”

“Inasmuch as Mr. Mitchem was unaware that his car was blocked given his somnambulant state, the mere blocking of his vehicle is of no Fourth Amendment consequence.” United States v. Mitchem, 2021 U.S. Dist. LEXIS 118388 (S.D. W.Va. June 25, … Continue reading

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S.D.Ga.: Attacking dashcam video unavailing where credibility of officer seeing gun wasn’t challenged

“Harris’ objection to the Magistrate Judge’s recommendation that the seizure of the firearm was permissible focuses on whether the submitted video evidence clearly showed that the object in his waistband was a firearm, and whether the officers had sufficient reasonable … Continue reading

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M.D.Pa.: ISP’s duty to report CP under 18 U.S.C. § 2258A doesn’t make it still not a private search

Kik’s duty to report child pornography on its platform under 18 U.S.C. § 2258A doesn’t make its search still not a private search. United States v. Hart, 2021 U.S. Dist. LEXIS 111166 (M.D. Pa. June 14, 2021). The trial court … Continue reading

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N.D.Ind.: Officer’s lack of credibility results in finding of no RS

The court finds the officer’s testimony and credibility completely lacking on the basis for the stop and grants the motion to suppress. United States v. McGibney, 2021 U.S. Dist. LEXIS 110826 (N.D. Ind. June 14, 2021).* Execution of a search … Continue reading

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CA9: Defendant had standing in his hotel room despite having no REP in a stolen laptop in the room

Defendant had standing to challenge the search of his hotel room, but he did not have any reasonable expectation of privacy in a stolen laptop he possessed. If the entry into the hotel room is unreasonable, the seizure of the … Continue reading

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N.D.Ohio: 5 yo child wandering in apt parking lot at 2:30 am was exigency when door was open to apt

A five year old boy found wandering at 2:30 am in an apartment building parking lot was exigency for the police to further open defendant’s partially open door when the apartment was found. United States v. Shorter, 2021 U.S. Dist. … Continue reading

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S.D.W.Va.: A tiny scrap of mj in a trash pull doesn’t support an inference of drug dealing from the house

“Detective Aldridge could not reasonably have believed that the three tiny scraps of marijuana in the trash—unable to cover even a corner of a Post-it note [actually a stem; photo included]—could support the idea of ongoing or recurrent activity in … Continue reading

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NC: State has burden of proof BRD on 4A harmless error

The state carries the burden of proving harmless error for a Fourth Amendment beyond a reasonable doubt. State v. Scott, 2021-NCSC-41, 2021 N.C. LEXIS 321 (Apr. 16, 2021). The evidence supports that the person consenting had apparent and actual authority … Continue reading

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AR: One can’t change 4A argument from trial court to appeal

Defendant’s oral motion to suppress was presented and denied. On appeal, defendant changed the specifics of the argument, and it’s not considered as presented. Saffel v. State, 2021 Ark. App. LEXIS 176 (Apr. 14, 2021). The officer’s stop of defendant’s … Continue reading

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OR: State didn’t develop its argument about RS at the hearing, and it’s found waived

The state’s justification for inquiries about travel plans isn’t reached on appeal because it wasn’t briefed or even developed below. Instead, the questions about it related only to initial reasonable suspicion. “We conclude that the record could have developed differently … Continue reading

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D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent

The record doesn’t support the trial court’s finding of consent to a squeeze of a bag that revealed a gun. The officer was reaching for the bag asking for consent. “The government played footage from Denton’s body worn camera (‘BWC’), … Continue reading

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CA8: Warrantless seizure of computer in fraud case was reasonable because of exigency

The warrantless seizure of defendant’s computer was justified by exigent circumstances that it contained evidence of fraud. United States v. Mays, 2021 U.S. App. LEXIS 9861 (8th Cir. Apr. 6, 2021). “Because we conclude that the officer’s initial question about … Continue reading

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CA3: There was PC on the totality of the SW affidavit despite its alleged “slapdash” format; courts don’t grade warrant requests except for totality

There is probable cause on the totality of the affidavit. Defendant challenges the lack of order and “slapdash” nature of the showing. Courts don’t grade warrant applications for style, just substance. United States v. Wilson, 2021 U.S. App. LEXIS 9619 … Continue reading

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CA3: Mid-trial suppression argument wasn’t timely

Defendant’s mid-trial suppression motion was untimely despite the defense claim that this was a second search he wasn’t aware of until it came up at trial. United States v. Elcock, 2021 U.S. App. LEXIS 9503 (3d Cir. Apr. 1, 2021). … Continue reading

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D.N.M.: Business records SW was particular where limited to firearms offense

The business records search here was not overbroad as enabling a search of all records; just for violations of firearms offenses under 18 U.S.C. § 922(a)(1). It was particular enough. United States v. Warner, 2021 U.S. Dist. LEXIS 62302 (D. … Continue reading

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