Category Archives: Issue preclusion

CA7: Officers complied with law in getting CSLI by exigency; Carpenter came two months after trial

Defendant was the subject of exigency based efforts to get his CSLI because he was actively being pursued as involved in a 2013 burglary investigation scoring 25 firearms. The CSLI request complied with the law at the time. Carpenter was … Continue reading

Posted in Cell site location information, Good faith exception, Issue preclusion | Comments Off on CA7: Officers complied with law in getting CSLI by exigency; Carpenter came two months after trial

NJ: “Red flag” petition denial reversed for lack of findings

Denial of red flag petition reversed for lack of findings. “The Extreme Risk Protective Order Act of 2018 (the Act), New Jersey’s ‘red flag law,’ empowers a court to remove firearms from a person who ‘poses a significant danger of … Continue reading

Posted in Issue preclusion, Standards of review | Comments Off on NJ: “Red flag” petition denial reversed for lack of findings

OH5: Exclusionary rule does not apply in child protection cases

“While this appears to be a case of first impression in Ohio, other states have uniformly held the Fourth Amendment’s exclusionary rule does not apply in child protection cases.” It follows State ex rel. A.R. v. C.R., 1999 UT 43, … Continue reading

Posted in Exclusionary rule, Issue preclusion, Particularity | Comments Off on OH5: Exclusionary rule does not apply in child protection cases

CA9: Denial of motion to suppress in state court precludes § 1983 case over same search

Defendant lost his motion to suppress in state court over a warrantless entry into his garage. He later sued over the search under § 1983 in federal court. The federal case was precluded by the state denial of the motion … Continue reading

Posted in § 1983 / Bivens, Issue preclusion, Qualified immunity, Reasonable suspicion | Comments Off on CA9: Denial of motion to suppress in state court precludes § 1983 case over same search

CA6: Successor habeas trying to make search claim a Brady issue fails

Successor habeas on ground that audio of dashcam video was muted to conceal a Fourth Amendment violation denied. It doesn’t show actual innocence for 2255(h). In re Jelks, 2021 U.S. App. LEXIS 18552 (6th Cir. June 21, 2021). Defendant had … Continue reading

Posted in Franks doctrine, Issue preclusion | Comments Off on CA6: Successor habeas trying to make search claim a Brady issue fails

N.D.Ohio: Def’s suppression motion loss precludes his § 1983 case on same issue

Plaintiff’s civil rights complaint that OnStar allegedly illegally tracked his vehicle was already decided against him in his criminal case. The issue is precluded here. Lenhart v. Savetski, 2021 U.S. Dist. LEXIS 109462 (N.D. Ohio June 11, 2021). The collection … Continue reading

Posted in § 1983 / Bivens, Cell site location information, Emergency / exigency, Issue preclusion | Comments Off on N.D.Ohio: Def’s suppression motion loss precludes his § 1983 case on same issue

M.D.Ala.: Post-conviction petitioner has to show he told defense counsel of facts and issues not raised

When challenging defense counsel’s failure to raise an issue in an ineffective assistance of counsel claim, it behooves the defendant to show that defense counsel was told about the issue. Defendant here was aware of the alleged fact he complains … Continue reading

Posted in Ineffective assistance, Issue preclusion, Reasonable suspicion | Comments Off on M.D.Ala.: Post-conviction petitioner has to show he told defense counsel of facts and issues not raised

D.Md.: State’s DoIT owns and controls state computers and can enter computers and offices for access; no REP in state computer

The State of Maryland’s Department of Information Technology owns and controls the computers on its network and has the authority to enter offices to enter computers. Here, child pornography was found. Defendant had no reasonable expectation of privacy in the … Continue reading

Posted in Computer and cloud searches, Consent, Issue preclusion, Reasonable expectation of privacy, Seizure | Comments Off on D.Md.: State’s DoIT owns and controls state computers and can enter computers and offices for access; no REP in state computer

GFE is not an exception to warrant requirement, only the exclusionary rule (dissent)

Per the dissent, the Michigan Court of Appeals erred in holding in an unpublished opinion that the good faith exception is an exception to the warrant requirement, not the exclusionary rule. People v. Mead, 2020 Mich. App. LEXIS 6223 (Sept. … Continue reading

Posted in Good faith exception, Issue preclusion, Reasonable suspicion | Comments Off on GFE is not an exception to warrant requirement, only the exclusionary rule (dissent)

D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent

The record doesn’t support the trial court’s finding of consent to a squeeze of a bag that revealed a gun. The officer was reaching for the bag asking for consent. “The government played footage from Denton’s body worn camera (‘BWC’), … Continue reading

Posted in Consent, Issue preclusion, Standards of review | Comments Off on D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent

S.D.Ala.: Younger doctrine precludes ptf’s 4A claim over pending state criminal case

Plaintiff’s false arrest claim claiming, inter alia, a Fourth Amendment violation, two years into his pending state criminal case was barred by the Younger doctrine. Sweeting v. Garrett, 2021 U.S. Dist. LEXIS 66705 (S.D. Ala. Apr. 6, 2021). Under Washington’s … Continue reading

Posted in Issue preclusion, Probable cause | Comments Off on S.D.Ala.: Younger doctrine precludes ptf’s 4A claim over pending state criminal case

W.D.Mo.: Pushing down the ptf causing injury was a seizure

The officer pushing down the plaintiff causing injury was a seizure. “A reasonable officer in Sasse’s position would not have thought it appropriate to shove Martinez so forcefully without first at least requesting that Martinez step back or step away … Continue reading

Posted in Issue preclusion, Seizure | Comments Off on W.D.Mo.: Pushing down the ptf causing injury was a seizure

CA5: Ptf’s § 1983 case over his search implies invalidity of the conviction, and it’s barred by Heck

Plaintiff’s § 1983 case against his search and seizure implies invalidity of the conviction, and it’s barred by Heck. VanBuren v. Walker, 2021 U.S. App. LEXIS 9115 (5th Cir. Mar. 29, 2021). “As to Hoffert’s remaining claim for violation of … Continue reading

Posted in Arrest or entry on arrest, Issue preclusion | Comments Off on CA5: Ptf’s § 1983 case over his search implies invalidity of the conviction, and it’s barred by Heck

DE: Defense counsel’s letter to client why 4A claim would fail shows def would never prevail

“Turning to Stokes’ claim that trial counsel was ineffective for failing to investigate his case and make various arguments on his behalf, the record refutes this claim. First, it is clear that trial counsel carefully considered filing a motion to … Continue reading

Posted in Ineffective assistance, Issue preclusion | Comments Off on DE: Defense counsel’s letter to client why 4A claim would fail shows def would never prevail

DE: Trash container at street was not on curtilage

Defendant’s trash container at the foot of his driveway awaiting pickup was not on the curtilage. Moreover, he had no reasonable expectation of privacy in it sitting there. State v. Peart, 2021 Del. Super. LEXIS 243 (Mar. 25, 2021). Rooker-Feldman … Continue reading

Posted in Curtilage, Issue preclusion | Comments Off on DE: Trash container at street was not on curtilage

W.D.La.: Govt showed justification for protective sweep of person then car

“The firearms and drugs were found during the protective sweep of the passenger area of the vehicle. The initial stop and pat-down of Defendant were justified under Terry, and the subsequent protective sweep of the car for weapons was a … Continue reading

Posted in Franks doctrine, Issue preclusion, Protective sweep, Reasonable suspicion | Comments Off on W.D.La.: Govt showed justification for protective sweep of person then car

E.D.Wis.: Ptf’s civil case over his criminal case might run afoul of Heck so it’s ordered stayed

It appears that plaintiff’s complaint over his criminal case would likely be barred under Heck if he’s convicted. Therefore, it is administratively closed and stayed. McClain v. Morales, 2021 U.S. Dist. LEXIS 53173 (E.D. Wis. Mar. 22, 2021). Defendant’s motion … Continue reading

Posted in Franks doctrine, Issue preclusion | Comments Off on E.D.Wis.: Ptf’s civil case over his criminal case might run afoul of Heck so it’s ordered stayed

MI: Inventory policy doesn’t have to be written if it’s standardized

A written search inventory policy isn’t constitutionally required. “We hold that, in order to establish that an inventory search is reasonable, the prosecution must establish that an inventory-search policy existed, all police officers were required to follow the policy, the … Continue reading

Posted in Exclusionary rule, Inventory, Issue preclusion, Unreasonable application / § 2254(d), Waiver | Comments Off on MI: Inventory policy doesn’t have to be written if it’s standardized

D.Me.: Even a perjury claim about state court search testimony doesn’t get over Stone bar

2254 petitioner’s claim that the search and seizure testimony in state court was based on perjury still doesn’t get him over Stone v. Powell. Wilson v. Maine, 2021 U.S. Dist. LEXIS 44260 (D. Me. Mar. 10, 2021). A § 1983 … Continue reading

Posted in Issue preclusion | Comments Off on D.Me.: Even a perjury claim about state court search testimony doesn’t get over Stone bar

CA5: Police accidentally shooting a hostage isn’t an intentional seizure

“Here, the only plausible reading of the allegations is that Doe accidentally shot Ulises while trying to help him by ending the hostage situation. Such accidental conduct does not result in a Fourth Amendment seizure. See Brower, 489 U.S. at … Continue reading

Posted in Excessive force, Issue preclusion, Qualified immunity | Comments Off on CA5: Police accidentally shooting a hostage isn’t an intentional seizure