Category Archives: Issue preclusion

CA3: Younger abstention applies to bar federal litigation of red-flag gun seizure case

Greco v. Bruck, 2022 U.S. App. LEXIS 13074 (3d Cir. May 13, 2022), prior opinion Greco v. Bruck, 2021 U.S. App. LEXIS 33660 (3d Cir. Nov. 12, 2021) (posted here) reaffirms that state court proceedings bar federal litigation in a … Continue reading

Posted in Issue preclusion | Comments Off on CA3: Younger abstention applies to bar federal litigation of red-flag gun seizure case

N.D.Ga.: Pro forma objection to R&R doesn’t articulate argument, so it’s waived

Defendant didn’t fairly articulate his objections to the R&R, so his objection is waived. United States v. Hill, 2022 U.S. Dist. LEXIS 83707 (N.D.Ga. May 9, 2022). There was probable cause for this search authorization, and the good faith exception … Continue reading

Posted in Exclusionary rule, Franks doctrine, Ineffective assistance, Issue preclusion, Military searches, Probation / Parole search, Reasonable suspicion, Waiver | Comments Off on N.D.Ga.: Pro forma objection to R&R doesn’t articulate argument, so it’s waived

N.D.Ala.: Imprecision in the SW affidavit isn’t a Franks violation

Imprecision in the affiant investigator’s words doesn’t equate to recklessness for Franks purposes. United States v. Tubbs, 2022 U.S. Dist. LEXIS 73473 (N.D.Ala. Mar. 14, 2022).* Defendant’s alleged Franks violation wasn’t even material based on all the evidence that the … Continue reading

Posted in Franks doctrine, Issue preclusion, Reasonable suspicion, Stop and frisk | Comments Off on N.D.Ala.: Imprecision in the SW affidavit isn’t a Franks violation

CA7: Younger and immunity bar ptf’s § 1983 claim against search

Plaintiff’s claims that the parties conspired to falsify evidence of this search against him, aside from being fantastical, was barred by Younger and qualified or absolute immunity for all the parties. Shaw v. Cnty. of Milwaukee, 2022 U.S. App. LEXIS … Continue reading

Posted in § 1983 / Bivens, Ineffective assistance, Issue preclusion, Qualified immunity | Comments Off on CA7: Younger and immunity bar ptf’s § 1983 claim against search

TX: Affidavit incorporated in SW had specific description and saves SW from overbreadth argument

“The issue before us is whether the particularity requirement of the Fourth Amendment is satisfied if a warrant describes the place to be searched as a fraternity house as a whole without specifying a suspect’s actual room in the house, … Continue reading

Posted in Ineffective assistance, Issue preclusion, Particularity, Warrant papers | Comments Off on TX: Affidavit incorporated in SW had specific description and saves SW from overbreadth argument

D.Ariz.: To overcome Stone bar, pet’r has to proffer something about being denied “full and fair opportunity” to litigate 4A claim

To overcome Stone in a 2254, the petitioner has to proffer that he was denied a full and fair opportunity to litigate his Fourth Amendment claim. Failure to do so is fatal to claim. Bartels v. Arizona, 2022 U.S. Dist. … Continue reading

Posted in Franks doctrine, Ineffective assistance, Issue preclusion | Comments Off on D.Ariz.: To overcome Stone bar, pet’r has to proffer something about being denied “full and fair opportunity” to litigate 4A claim

S.D.N.Y.: Video of def and cell phone at scene of crime is PC for phone

Defendant with his cell phone in hand was at the scene of a shooting as shown by surveillance video. That’s probable cause for the phone. United States v. King, 2022 U.S. Dist. LEXIS 53647 (S.D.N.Y. Mar. 24, 2022). When the … Continue reading

Posted in Burden of pleading, Cell phones, Issue preclusion | Comments Off on S.D.N.Y.: Video of def and cell phone at scene of crime is PC for phone

E.D.Tenn.: Def doesn’t show a right to see whether the SW in his case was validly issued; that’s the lawyer’s call; and he pled guilty

“Petitioner alleges that Attorney Greene failed to present critical documents for Petitioner’s review prior to his guilty plea. Petitioner contends that he should have been shown ‘evidence of there being a valid search warrant,’ ‘computer chat logs where the government … Continue reading

Posted in Ineffective assistance, Issue preclusion, Staleness | Comments Off on E.D.Tenn.: Def doesn’t show a right to see whether the SW in his case was validly issued; that’s the lawyer’s call; and he pled guilty

D.Neb.: State officer’s jurisdiction is not a 4A question

State officers outside their jurisdiction making an arrest is not alone a Fourth Amendment violation. Virginia v. Moore. United States v. Blair, 2022 U.S. Dist. LEXIS 47833 (D.Neb. Mar. 17, 2022).* Defendant found to have consented to a search after … Continue reading

Posted in Arrest or entry on arrest, Issue preclusion, Reasonableness, Voluntariness, Waiver | Comments Off on D.Neb.: State officer’s jurisdiction is not a 4A question

DC: Facebook has no right to a SW instead of subpoena for subscriber information on an account

A civil investigative subpoena to Facebook for information about posters of Covid misinformation was not unreasonable. n.3: “Meta suggests that the Fourth Amendment requires the District to obtain a search warrant to get this information. … One sufficient response is … Continue reading

Posted in Issue preclusion, Probable cause, Rule 41(g) / Return of property, Social media warrants | Comments Off on DC: Facebook has no right to a SW instead of subpoena for subscriber information on an account

NC: PC shown for SW for GPS monitoring device

There was probable cause shown for the search warrant for defendant’s GPS monitoring device and his house for evidence of murder. State v. Gallion, 2022-NCCOA-164, 2022 N.C. App. LEXIS 178 (Mar. 15, 2022). 2254 petitioner’s sole ground for relief is … Continue reading

Posted in Franks doctrine, GPS / Tracking Data, Issue preclusion | Comments Off on NC: PC shown for SW for GPS monitoring device

VI: Def’s incapacity not bar to BAC blood draw and implied consent

Defendant’s incapacity does not nullify his implied consent to a BAC blood draw by statute. People v. Joseph, 2022 VI SUPER 12, 2022 V.I. LEXIS 16 (Jan. 27, 2022) (10 months from suppression hearing to order). A nonprosecution agreement does … Continue reading

Posted in Drug or alcohol testing, Issue preclusion, Probable cause, Qualified immunity | Comments Off on VI: Def’s incapacity not bar to BAC blood draw and implied consent

CA6: On “four corners” review, new evidence isn’t considered

Search warrant applications are reviewed on the “four corners” of the affidavit. “New evidence” isn’t considered. United States v. Shade, 2022 U.S. Dist. LEXIS 43451 (6th Cir. Mar. 9, 2022). There was reasonable suspicion for the officer to expand the … Continue reading

Posted in Issue preclusion, Reasonable suspicion, Standards of review | Comments Off on CA6: On “four corners” review, new evidence isn’t considered

D.Kan.: No REP in Twitter account it closed for violation of TOS for child porn

Twitter deactivated defendant’s account for violation of its terms of service and reported him to NCMEC. Defendant had no reasonable expectation of privacy in the files Twitter had preserved on him. “The Court finds under the circumstances of the case … Continue reading

Posted in Issue preclusion, Probable cause, Reasonable expectation of privacy, Social media warrants, Warrant papers | Comments Off on D.Kan.: No REP in Twitter account it closed for violation of TOS for child porn

NY Kings: 911 call 6 dogs in Manhattan apt were uncared for not exigency for warrantless entry

“Upon a review of the record, we find that the evidence adduced at the hearing did not establish the existence of facts sufficient to provide the police officer with reasonable grounds to believe that an emergency existed which required the … Continue reading

Posted in Emergency / exigency, Ineffective assistance, Issue preclusion | Comments Off on NY Kings: 911 call 6 dogs in Manhattan apt were uncared for not exigency for warrantless entry

NY Nassau: 14 days pole camera surveillance of def’s residence not unreasonable under 4A or state constitution

Pole camera surveillance of a homeless shelter for 14 days observing defendant coming and going was not an unreasonable search under the state or federal constitution, even if it was his home. People v. Destefano, 2022 NY Slip Op 22052, … Continue reading

Posted in E-mail, Issue preclusion, Standing | Comments Off on NY Nassau: 14 days pole camera surveillance of def’s residence not unreasonable under 4A or state constitution

CA4: Exclusionary rule does not apply to violations of Posse Comitatus Act

An investigation by the DoD Inspector General is an exception to the Posse Comitatus Act. Besides, a violation of the Posse Comitatus Act is not subject to the exclusionary rule. United States v. Vaxima, Inc., 2022 U.S. App. LEXIS 5315 … Continue reading

Posted in Automobile exception, Exclusionary rule, Issue preclusion | Comments Off on CA4: Exclusionary rule does not apply to violations of Posse Comitatus Act

OR: Questioning motorist about tattoos unreasonably extended stop

A question to a motorist about tattoos during a stop because they might have been prison tattoos wasn’t shown to be related to officer safety and was thus unreasonable. “Here, the circuitous, propensity-based inquiry about defendant’s incarceration history was predicated … Continue reading

Posted in Administrative search, Curtilage, Issue preclusion, Reasonable suspicion | Comments Off on OR: Questioning motorist about tattoos unreasonably extended stop

S.D.Ill.: CPS seizing child from home can be a 4A claim

A governmental actor taking a child from the home is determined under the Fourth Amendment if substantive due process does not apply. Brokaw v. Mercer County, 235 F.3d 1000, 1017-18 (7th Cir. 2000). H.P. v. Kelley, 2022 U.S. Dist. LEXIS … Continue reading

Posted in Excessive force, Issue preclusion, Seizure | Comments Off on S.D.Ill.: CPS seizing child from home can be a 4A claim

IA: PC to search a car is not per se PC to search the driver; more is needed

Probable cause to search a car under the automobile exception does not automatically give probable cause to search the person of the driver. It depends on the facts. State v. Stevens, 2022 Iowa Sup. LEXIS 13 (Feb. 18, 2022). Temporarily … Continue reading

Posted in Automobile exception, Issue preclusion, Seizure | Comments Off on IA: PC to search a car is not per se PC to search the driver; more is needed