Category Archives: Admissibility of evidence

CA9: Oral amendment to SW to add a place to be searched never incorporated violates 4A, but GFE here because no controlling authority

Officers had a search warrant for plaintiff’s hotel room searching for evidence of a drug operation. They called the issuing judge for permission to search plaintiff’s home under the same affidavit, which was orally granted, but the warrant was not … Continue reading

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S.D.Ga.: Govt’s motion to reopen suppression hearing after R&R is granted

The government didn’t like the R&R so it moved to put on additional evidence before the USMJ. Granted. “Therefore, in light of the Court’s ‘responsibility to make an informed decision’ on Wright’s suppression motion, Khan, 2018 WL 2214813, at *2, … Continue reading

Posted in Admissibility of evidence, Automobile exception, Excessive force | Comments Off on S.D.Ga.: Govt’s motion to reopen suppression hearing after R&R is granted

E.D.Tenn.: Challenge of CI’s ID of def in 4A suppression hearing not the remedy; that’s a trial question

Defendant seeks suppression of the CI’s identification of him within the search warrant process, which the court declines to do. Due process issues with identification are trial issues, not Fourth Amendment motion to suppress issues. “Either remedy, exclusion of the … Continue reading

Posted in Admissibility of evidence, Standing, Suppression hearings | Comments Off on E.D.Tenn.: Challenge of CI’s ID of def in 4A suppression hearing not the remedy; that’s a trial question

GA: Trial questions about SW affidavit properly excluded where officer didn’t prepare affidavit

Trial questions to one officer about alleged false statements in a search warrant affidavit attributed to him but where it was not written by him were excluded. This was not an abuse of discretion since he wasn’t the affiant. Harris … Continue reading

Posted in Admissibility of evidence, Cell phones, Cell site location information | Comments Off on GA: Trial questions about SW affidavit properly excluded where officer didn’t prepare affidavit

CA3: Not plain error to fail to exclude potential prejudicial testimony about risk of violence in execution of SW

Testimony about how a search warrant was executed as it was could have prejudiced defendant by revealing the government thought he was violent before arrest. It was not, however, plain error on this record without an objection. United States v. … Continue reading

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D.Ore.: Officer can be cross-examined at trial on his SW affidavit

The government’s motion in limine against crossing the IRS agent on his search warrant affidavit is denied. The search has already been litigated, and defendant can’t use this as a “mini-Franks hearing.” The government can object if it goes far … Continue reading

Posted in Admissibility of evidence, Plain view, feel, smell | Comments Off on D.Ore.: Officer can be cross-examined at trial on his SW affidavit

D.Ore.: Officer may be cross-examined at trial over contents of SW affidavit if relevant

“The Court denies the Government’s motion to prohibit Defendant from cross-examining IRS Special Agent Jason Nix on his sworn statements contained in a search warrant application. See ECF 100 at 13-15. Defendant may cross examine Special Agent Nix regarding any … Continue reading

Posted in Admissibility of evidence, Excessive force, Franks doctrine, Qualified immunity | Comments Off on D.Ore.: Officer may be cross-examined at trial over contents of SW affidavit if relevant

CA5: SW affidavit at trial violated confrontation

The government violated the confrontation clause by putting into evidence a search warrant affidavit to seek to give context to the CS’s dealings with defendant. If that’s so important, then the government should call him. United States v. Hamann, 2022 … Continue reading

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IA: Admission of SW affidavit at trial with CI’s version violated confrontation

Admission of the search warrant affidavit here at trial with inadmissible hearsay of the CI was a violation of confrontation. State v. Martinez, 2022 Iowa App. LEXIS 410 (May 11, 2022). These search warrant materials remain sealed for one year. … Continue reading

Posted in Admissibility of evidence, Rule 41(g) / Return of property, Warrant execution, Warrant papers | Comments Off on IA: Admission of SW affidavit at trial with CI’s version violated confrontation

CA9: Neighbor’s video of SWAT team arrival for search was properly excluded at trial for confusion of issues

Defendant’s neighbor recorded the SWAT team arrival and participating in the execution of the search warrant from outside the house. Defendant’s offer of the video at trial was rejected. “Permitting the jury to see that the police who were executing … Continue reading

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CA6: There was PC and exigency for search of car even though district court didn’t say “automobile exception”

The smell of marijuana from defendant’s car was probable cause. The district court didn’t say “automobile exception,” but that’s what it meant. United States v. Hall, 2022 U.S. App. LEXIS 2983 (6th Cir. Feb. 2, 2022).* Defendant’s Franks allegation fails … Continue reading

Posted in Admissibility of evidence, Automobile exception, Franks doctrine, Probable cause | Comments Off on CA6: There was PC and exigency for search of car even though district court didn’t say “automobile exception”

OH10: No REP in possession of a stolen laptop that sent its location information

Appellant’s motion to reopen his appeal to reargue his Fourth Amendment claims is denied. Not one thing he proffers can change the outcome of the appeal. There was a basis for a GPS warrant on his vehicle, and there was … Continue reading

Posted in Admissibility of evidence, Computer and cloud searches, Informant hearsay, Prison and jail searches, Tracking warrant | Comments Off on OH10: No REP in possession of a stolen laptop that sent its location information

S.D.Ind.: The state used Google satellite images to corroborate officer’s testimony of stop

The government used Google satellite images and distancing to corroborate the officer’s testimony defendant didn’t signal his turn in time. After the stop, the smell of marijuana was apparent. United States v. Miles, 2022 U.S. Dist. LEXIS 14860 (S.D.Ind. Jan. … Continue reading

Posted in Admissibility of evidence, Burden of pleading, Burden of proof, Excessive force | Comments Off on S.D.Ind.: The state used Google satellite images to corroborate officer’s testimony of stop

D.Neb.: Mid-trial Franks motion based on testimony still fails

Defendant filed and lost a Franks motion. He renewed it mid-trial after testimony. This one fares no better. It’s based on a claim defense counsel should have interviewed the witness earlier for the Franks motion, but all this is speculative. … Continue reading

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MT: Lawyer suspended for telling client to refuse to cooperate in execution of a SW

A lawyer telling his girlfriend-client to refuse to cooperate in DUI blood draw by search warrant is suspended for 30 days. Multiple officers were ultimately involved with a restraint chair brought in before she relented. The lawyer was also convicted … Continue reading

Posted in Admissibility of evidence, Ineffective assistance, Neutral and detached magistrate, Warrant execution | Comments Off on MT: Lawyer suspended for telling client to refuse to cooperate in execution of a SW

D.Mont.: Def’s SDT to Instagram for material potentially related to suppression motion granted

Defendant sought a subpoena from Instagram to see who was involved in reporting CyberTips to NCMEC. The question of admissibility relates to a potential suppression motion, not trial. Subpoena granted. United States v. Weber, 2021 U.S. Dist. LEXIS 229264 (D.Mont. … Continue reading

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SC permits SW issuing judges to testify to PC. But why? It’s a question of law.

Search warrant issuing judges can testify in South Carolina to why they found probable cause. [Why? Probable cause is a question of law everywhere else in the United States.] The omission of some information didn’t change the probable cause analysis, … Continue reading

Posted in Admissibility of evidence, Neutral and detached magistrate | Comments Off on SC permits SW issuing judges to testify to PC. But why? It’s a question of law.

MO: Traffic stop not custodial for Miranda

A traffic stop is not a custodial arrest requiring Miranda warnings. Defendant’s admissions he had drugs wasn’t excludable. State v. Ybarra, 2021 Mo. App. LEXIS 1031 (Nov. 23, 2021). Not objecting to the state offering a search warrant application into … Continue reading

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N.D.Ohio: Even suppressed evidence can sometimes be used in rebuttal if the door is opened

The government says that it is not going to use evidence from the search of defendant, but it reserves its ability to attempt to use it in rebuttal, if defendant opens the door. The possibility of a superseding indictment to … Continue reading

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CA10: High speed chase justifies search under automobile exception

A high speed chase justifies an automobile exception search of the car when it’s finally stopped. Here there was a dog alert before. United States v. Chavez, 2021 U.S. App. LEXIS 29287 (10th Cir. Sept. 28, 2021). The rules of … Continue reading

Posted in Admissibility of evidence, Automobile exception, DNA, Probable cause | Comments Off on CA10: High speed chase justifies search under automobile exception