{"id":2780,"date":"2009-02-17T10:07:15","date_gmt":"2008-12-19T06:38:32","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-12-19T06:38:32","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2780","title":{"rendered":"CA5: IAC claim for not challenging alleged consent search merits a hearing"},"content":{"rendered":"

Defendant showed sufficient doubt about counsel’s performance in failing to file a motion to suppress and urging a guilty plea before the videotape of the stop was even made available to the defense. The videotape of the defendant’s stop was reason
\nto fire defense counsel and hire another lawyer, and the pleadings and the video were sufficient to show a likelihood of success as to consent not being voluntary. On the merits of the stop, it was based on a traffic violation, but the record is devoid of anything showing reasonable suspicion. On the merits of the search, the defendant was asked to follow the police officer to another location for the writing of his warning, but the officer retained the paperwork during this “decamp[ment].” The court does not decide the merits of the consent issue because there was no suppression hearing, but it is outlined for the District Court. Remanded for a full hearing on the merits of the search claim and counsel’s strategy for the guilty plea rather than a conditional plea. United States v. Cavitt<\/a>, 550 F.3d 430 (5th Cir. 2008).*<\/p>\n

A Michigan v. Long<\/a> protective sweep of defendant’s car was based on reasonable suspicion based on defendant’s actions and the location of the stop. United States v. Walker, 2008 U.S. Dist. LEXIS 101545 (E.D. Va. December 16, 2008)*:<\/p>\n

The incident occurred just after 12:00 a.m. in an area known by the police to be a high crime, high narcotics, and high violence area; Walker jumped out of the car when the police approached the vehicle to ask him a question; he appeared nervous, his voice was shaky, and he began to look around nervously; and he gave inconsistent information about his place of residence. Based on these circumstances, this Court finds that the officers had a reason to detain and conduct a protective sweep of the vehicle so as to protect themselves and the public. Therefore, the seizure and protective sweep of the vehicle was constitutionally justified.<\/p><\/blockquote>\n

(Comment:<\/em> The use of “protective sweep,” originally a look for persons in a building under Buie<\/a>, now includes a look for weapons, too.)<\/p>\n","protected":false},"excerpt":{"rendered":"

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