TN: Def’s post-conviction burden is to show that the motion to suppress would have prevailed

On a post-conviction petition that defense counsel was ineffective, the defense has to put on proof to show that there is some reason to believe that the motion to suppress would have been granted if it had been pursued at trial. Here, there was nothing in the record to conclude much of anything, and looking back at the trial record doesn’t help either. It suggests abandonment, but the issue was never explored. Gatewood v. State, 2017 Tenn. Crim. App. LEXIS 113 (Feb. 17, 2017):
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OR: Automobile exception applies to any lawful stop where PC of a crime develops

The automobile exception applies when a vehicle is lawfully stopped for any reason and then probable cause develops. State v. Bliss, 283 Ore. App. 833, 2017 Ore. App. LEXIS 256 (Feb. 23, 2017).

Defendant requested a meeting with the police and attended it voluntarily, so he wasn’t seized when he made his statement. United States v. Wand, 2017 U.S. Dist. LEXIS 24000 (M.D. Tenn. Feb. 21, 2017).*

Posted in Automobile exception, Seizure | Comments Off

DE: Flight from a consensual encounter in a high crime area was RS

Defendant’s stop in a high crime area was consensual. Defendant, however, was acting like he was checking for a gun on his person, and then he fled. That gave the officers reasonable suspicion. Loat v. State, 2017 Del. LEXIS 70 (Feb. 22, 2017).

The stop was for speeding, but the officer impermissibly extended the stop without reasonable suspicion. The trial court erred in not suppressing. State v. Campbell, 2017 Iowa App. LEXIS 170 (Feb. 22, 2017).*

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CA4: Pre-Rodriguez stop was valid under law at time

Rodriguez was decided after the stop, and the circuit recognized de minimus delays in the stop. Moreover, the stop is not calculated merely by time: “Under Digiovanni and other pre-Rodriguez cases, that Deputy McMurray may have been able to end the stop more quickly would not be dispositive. Determining reasonableness involved more than computing the average time it took to perform each required traffic-stop activity and cross-checking this value against a chart.” The stop was reasonable at the time it occurred, and that was good faith. Also, the specific Rodriguez factors weren’t argued, so that’s waived. United States v. Hill, 2017 U.S. App. LEXIS 3264 (4th Cir. Feb. 23, 2017).

The warrantless emergency entry into plaintiff’s home was reasonable. Police had objective information that a person inside had stabbed himself in the chest repeatedly with a steak knife. Oien v. County of San Bernardino, 2017 U.S. App. LEXIS 2961 (9th Cir. Feb. 21, 2017).*

Posted in Emergency / exigency, Good faith exception | Comments Off

CA5: Detention on a “mental writ” was reasonable

“Holloway is a six-foot-six, former Mississippi State University offensive lineman who was in a car accident with a deputy near Hattiesburg in Lamar County, Mississippi.” Later, he was described as “formidable.” It turned out there was a “mental writ” issued by a judicial officer for plaintiff as a danger to himself or others, and his detention on the writ was reasonable. There was, however, a disputed fact as to whether the officers used excessive force on him. Holloway v. Purvis, 2017 U.S. App. LEXIS 3130 (5th Cir. Feb. 22, 2017).

“Barmore’s attempt to conceal the drug pipe would have allowed a reasonably prudent man to believe that there were other items of contraband related to illegal drug activity in the truck. Viewing the evidence in the light most favorable to the Government and considering the totality of the circumstances, we conclude that there was probable cause to conduct a warrantless search of the vehicle.” Therefore, inventory is irrelevant. United States v. Barmore, 2017 U.S. App. LEXIS 2891 (5th Cir. Feb. 20, 2017).*

Posted in Probable cause, Seizure | Comments Off

CA10: GFE saves general warrant where affidavit specific and affiant served the warrant

Where officers obtained a warrant and searched two cell phones seized at the time of defendant’s arrest, the search warrant was invalid because it did not satisfy the particularity requirement since it did not identify either of the phones that were already in police possession, nor did it specify what material law enforcement was authorized to seize. However, the good faith exception applies because the affiant adequately described the phones in the affidavit and he served the warrant, so reliance on the warrant was objectively reasonable. It was also harmless beyond a reasonable doubt. United States v. Russian, 2017 U.S. App. LEXIS 2913 (10th Cir. Feb. 21, 2017):
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Posted in Cell phones, Good faith exception, Warrant execution | Comments Off

CA8: Def had no standing in sex trafficking victim’s cell phone

Defendant sought to challenge his previously waived search issue by seeking to withdraw his guilty plea. The phone belonged to his sex trafficking victim, so he apparently doesn’t have standing. United States v. McHenry, 2017 U.S. App. LEXIS 3358 (8th Cir. Feb. 24, 2017):
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CA6: Hodari D. doesn’t distinguish between accidentally or intentionally dropping contraband; it’s still abandonment

Officers pulled up to stop defendant on the street seeing a gun in his pocket, and he fled, dropping the gun. “Defendant also argues that Hodari D. is inapplicable because he inadvertently dropped his weapon, as opposed to ‘intentionally abandoning’ it as Hodari D. did. Hodari D. makes no such distinction. Quite to the contrary, Hodari D. relied on Hester v. United States, 265 U.S. 57 (1924), which used ‘abandon[]’ to refer to both throwing away and dropping items. Id. at 58; see Hodari D., 499 U.S. at 629 (citing Hester, 265 U.S. at 58). Moreover, this court has previously applied Hodari D. to unintentionally relinquished contraband.” United States v. Phillips, 2017 U.S. App. LEXIS 3391 (6th Cir. Feb. 22, 2017).

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OH10: Bare bones findings didn’t support finding search was valid; remanded

The trial court’s bare bones findings were insufficient to support the conclusion that the search was valid. Remanded. State v. Edwards, 2016-Ohio-4771, 2016 Ohio App. LEXIS 5413 (10th Dist. June 30, 2016).

Not challenging the Playpen warrant in this case was not ineffective assistance of counsel. United States v. Wheeler, 2016 U.S. Dist. LEXIS 184120 (N.D. Ga. June 23, 2016).*

Another Playpen warrant sustained. United States v. Tippens, 2016 U.S. Dist. LEXIS 184174 (W.D. Wash. Nov. 30, 2016);* United States v. Perdue, 2017 U.S. Dist. LEXIS 23098 (N.D. Tex. Feb. 17, 2017).*

Posted in Standards of review | Comments Off

DC: Def was stopped, name run, then his cigarette pack requested; not consensual

Officer’s stop of defendant, running his name for warrants, and then requesting his cigarette box was coercive and not consensual. Jones v. United States, 2017 D.C. App. LEXIS 17 (Feb. 23, 2017)*:
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