“‘To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question.’ Madden, 242 S.W.3d at 513. In other words, a cross examiner cannot create a factual dispute for purposes of an article 38.23(a) instruction merely by his questions or argument. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); Madden, 242 S.W.3d at 514; Cadoree, 331 S.W.3d at 521. It is only the answers that are evidence and may create a dispute. Madden, 242 S.W.3d at 514; Cadoree, 331 S.W.3d at 521. Further, the jury’s right to disbelieve a witness’s testimony in whole or part does not create a factual dispute as to article 38.23. See id. If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. Madden, 242 S.W.3d at 510, 518. And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. See id.’” Mandujano v. State, 2020 Tex. App. LEXIS 6102 (Tex. App. – Houston (14th Dist.) Aug. 3, 2020).

While review of the R&R is de novo, the USMJ’s credibility determination on a motion to suppress is still entitled to deference. United States v. Angulo-Gomez, 2020 U.S. Dist. LEXIS 137199 (W.D. N.Y. Aug. 3, 2020).

The government argued that the look into a hotel bathroom during an arrest was valid as a protective sweep, but the District Court failed to make any findings on that. Remanded and submission vacated. United States v. Fischer, 2020 U.S. App. LEXIS 24404 (9th Cir. Aug. 3, 2020).*

“To the extent Plaintiff is asserting a denial of medical care after his arrest, but before he arrived at the detention facility, district courts within the Ninth Circuit have held that law enforcement officers are required to provide objectively reasonable post-arrest care under the Fourth Amendment. See Neuroth v. Mendocino County, No. 15-cv-03226-RS, 2018 WL 418957 (N.D. Cal. Aug. 31, 2018); Borges v. County of Eureka, No. 15-cv-00846-YGR, 2017 WL 363212, at *6 (N.D. Cal. Jan. 25, 2017).” Here, the factual allegations don’t make a claim. Jones v. United States, 2020 U.S. Dist. LEXIS 137307 (D. Nev. July 10, 2020).

Bloomberg Law: Protester Surveillance May Test Constitutional Privacy in Courts by Julia Weng & Daniel R. Stoller: