M.D.Fla.: Cross-examining officer about mistakes in SW affidavit was mentioned in not finding IAC

All defense lawyers have likely done this: Cross-examining an officer over factual mistakes in the search warrant affidavit. This was mentioned in rejecting other parts of defense counsel’s representation at trial as not deficient under Strickland. Neiheisel v. United States, 2022 U.S. Dist. LEXIS 205005 (M.D. Fla. Sep. 27, 2022). [Police should take note: Don’t trivialize the affidavit for the warrant because your mistakes can show up at trial.]

Defendant’s unpreserved claim the police used special software (see Kyllo) to search his computer for child pornography was overly intrusive. On plain error review, the record is incomplete and affirmed. State v. Machardy, 2022 Ariz. App. LEXIS 337 (Nov. 10, 2022).* [This is a hard sell because the police may search the whole computer for digital tracks of child porn images but they aren’t “looking” in the traditional sense with their eyes at all files to see what’s there. As I understand the software, it finds CP or it doesn’t and the search is otherwise less intrusive than a physical “look” with the eyes. In that regard, it’s less intrusive than a physical look at the hard drive. (Watch out what you ask for.)]

There was probable cause for issuance of the warrant. The omissions from the showing of probable cause aren’t material to the finding. United States v. Austin, 2022 U.S. Dist. LEXIS 204786 (D. Mass. Nov. 9, 2022).*

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