Category Archives: Waiver

IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained

The fundamental error avenue to appeal an unobjected to search and seizure claim requires a showing that the evidence was all fabricated, not just that the search was bad. Evidence obtained by search and seizure is usually highly relevant to … Continue reading

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E.D.Cal.: Def had standing in car he was driving with permission of owner

As the driver of the car and the person with lawful possession, defendant had standing to challenge the search of the car he didn’t own. The GPS warrant for it was based on probable cause, and the warrant for firearms … Continue reading

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CA8: Post-trial assertion of 4A issue was waived

Defendant’s post-trial claim that the tracking warrant used to find him expired three weeks before the arrest was waived by not having been filed pretrial. Even if plain error is applied, “we agree with the district court there was no … Continue reading

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M.D.Ga.: Officer isn’t obliged to mention he could smell marijuana coming from the car

An officer smelling marijuana in a car isn’t obliged to tell the motorist he could for it to be true. United States v. Perkins, 2023 U.S. Dist. LEXIS 10564 (M.D. Ga. Jan. 19, 2023). At worst, the officer’s false statement … Continue reading

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AR: Claim state’s response to motion to suppress was judicial admission has to be presented to trial court

To argue that the state’s admissions in a response to a motion to suppress amount to a judicial admission of fact, the issue has to be argued to the trial court to preserve it. Otherwise, the trial court is free … Continue reading

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E.D.Tenn.: 11 day delay in getting computer SW not unreasonable

Depending on how one counted the time between the seizure of the cell phone and the search warrant, it was either 3 or 11 days, and either is reasonable. United States v. Deakins, 2023 U.S. Dist. LEXIS 6661 (E.D. Tenn. … Continue reading

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CA5: No suppression for no-knock violation

There is no suppression remedy for an unjustified no-knock warrant. United States v. Bryant, 2023 U.S. App. LEXIS 355 (5th Cir. Jan. 6, 2023). Defendant didn’t enter a conditional plea, so his guilty plea waived his Fourth Amendment claim. United … Continue reading

Posted in Automobile exception, Good faith exception, Knock and announce, Nexus, Waiver | Comments Off on CA5: No suppression for no-knock violation

D.Minn.: All theories to suppress must be raised to USMJ on referral or it’s waived

Defendant’s storage unit had the doors and handles tested with Ion Scanning. He had no reasonable expectation of privacy in that. Before the USDJ, however, he raised it was a trespass to do it as the officers did. That’s waived … Continue reading

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N.D.Okla.: NCIS SW in Japan as violation of Posse Comitatus Act was waived by guilty plea

Defendant was the subject of an NCIS search warrant while stationed in Japan. That led to his prosecution in the Northern District of Oklahoma. His guilty plea waived his claim the Posse Comitatus Act was somehow violated. United States v. … Continue reading

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CA7: Pro se letter to court to preserve search claim wasn’t conditional plea

Defendant pled to the indictment, having written a letter to the court that he wanted to preserve his search claim. His pro se letter did not satisfy the conditional plea rule. United States v. Turner, 2022 U.S. App. LEXIS 35476 … Continue reading

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WI: When statute or ordinance on which search was based is challenged, AG or city must be present

When challenging the constitutionality of an ordinance or statute as making a search and seizure unreasonable, defendant must join the city or notify the AG to participate. Without it, that’s waiver. “Because Raddemann has not shown compliance with Wis. Stat. … Continue reading

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N.D.Cal.: Attic apt and treehouse not specified in SW, but searches there still reasonable

An attic apartment and a treehouse were not specifically within the terms of the warrant, but the search was still reasonable. United States v. Ayala, 2022 U.S. Dist. LEXIS 227976 (N.D. Cal. Dec. 19, 2022). Defendant didn’t timely challenge his … Continue reading

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OR: Even constitutional challenges need to be preserved below

Even constitutional challenges need to be preserved below. Jimenez v. Dep’t of Revenue, 370 Or. 543 (Dec. 15, 2022). The court does not find the officer’s testimony credible. He claimed he saw defendant with binoculars from 100′ away buying liquor … Continue reading

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CA3: Scope of curtilage argument changed on appeal and thus waived

This case involved an argument about what is curtilage around a tent and firepit. Explosives were found outside this curtilage. On appeal, the scope of curtilage changed, and it’s waived. United States v. Madziarek, 2022 U.S. App. LEXIS 34076 (3d … Continue reading

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OH1: Failure to follow probation search statute doesn’t require exclusion

Defendant’s argument that the probation search statute wasn’t followed doesn’t require exclusion. That’s for constitutional violations. State v. Clardy, 2022-Ohio-4300, 2022 Ohio App. LEXIS 4070 (1st Dist. Dec. 2, 2022); State v. Kellett, 2022-Ohio-4340, 2022 Ohio App. LEXIS 4088 (5th … Continue reading

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PA: State’s statement of issues for review didn’t include the precise issue argued so it’s waived

The state in its statement of issues below addressed probable cause but did not mention inevitable discovery. That amounted to a waiver. “The inevitable discovery doctrine is not a subsidiary issue to a claim of adequate probable cause to support … Continue reading

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D.S.C.: No exigency 6 hours after 911 call

Police showed up at defendant’s house six hours after a 911 call. Whatever exigency there might have been had dissipated. Everyone in the house was asleep. United States v. Miller, 2022 U.S. Dist. LEXIS 189981 (D.S.C. Oct. 17, 2022). The … Continue reading

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MD: Full searches of cell phones can be a general search; there must be particularity or time limitation

Blanket full searches of cell phones without a particularity or time limitation can violate the Fourth Amendment and become a general search. It is suggested there be a search protocol if possible to limit the officers’ discretion. Despite all those … Continue reading

Posted in § 1983 / Bivens, Cell phones, Particularity, Standing, Waiver | Comments Off on MD: Full searches of cell phones can be a general search; there must be particularity or time limitation

CAAF: Loaning your cell phone to another doesn’t grant common authority to consent to a search

Defendant loaned his phone to another service member who accidentally discovered child pornography on it. The person the phone was loaned to had no common authority to consent to a search it. United States v. Black, 2022 CAAF LEXIS 614 … Continue reading

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NE: Changing the 4A argument between hearing and appeal is waiver

Defendant’s Fourth Amendment ineffective assistance of counsel claim is presented on appeal differently than at the hearing level, and that’s waiver. State v. Lessley, 312 Neb. 316 (2022). The affidavit for search warrant was issued with probable cause under the … Continue reading

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