TX8: Pre-Gant excessive SI not suppressed

Defendant was stopped for not signaling a turn, and outstanding warrants were found. The search incident of the vehicle was unconstitutional, but it was permitted at the time (2007), so it was not suppressed. State v. Elias, 2012 Tex. App. LEXIS 8094 (Tex. App. – El Paso September 26, 2012).*

A mere allegation that defense counsel did not file a motion to suppress is inadequate. It must be shown that it mattered. “The record does not explain why trial counsel did not file a motion to suppress or present to the jury the argument Jane did not have authority to consent to the search. … Allegations of ineffective assistance of counsel must be firmly founded in the record.” Kane v. State, 2012 Tex. App. LEXIS 8124 (Tex. App. – Amarillo September 26, 2012).*

Defendant was stopped when a game warden saw him fire a deer rifle from his vehicle. The rifle was in plain view at the time of the stop. He was a felon in possession, and the stop was valid. United States v. Lee, 2012 U.S. Dist. LEXIS 139724 (N.D. Okla. September 28, 2012).*