Category Archives: Waiver

N.D.Tex.: Motion to suppress 2½ months of pole camera recording untimely

The reasonableness of 2½ months of pole camera observation of defendant’s house was waived by not filing a motion to suppress until after the First Circuit granted en banc review on that issue and then a month later. United States … Continue reading

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CA2: Failure to promptly return property lawfully seized isn’t separate 4A claim

Where firearms were lawfully seized, there isn’t a separate Fourth Amendment claim for failure to promptly return them. Bello v. Rockland Cty., 2021 U.S. App. LEXIS 13281 (2d Cir. May 5, 2021). Probable cause is required for administrative subpoenas under … Continue reading

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W.D.La.: When cash and heroin found in car search, a notebook could be seized

When heroin and cash were found in the search of a car based on the smell of marijuana, seizure of a notebook was reasonable. The notebook was limited information compared to a cell phone. United States v. Pierre, 2021 U.S. … Continue reading

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AZ: Failure to include SW and affidavit in record for appeal is waiver

Defendant waived the Fourth Amendment claim about the search of his blood by not including the search warrant and its application in the appellate record. It is thus presumed to support the trial court’s decision. State v. Gomez, 2021 Ariz. … Continue reading

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E.D.Wis.: Def’s clothes in ER as a shooting victim were in plain view for police seizure

Defendant was in an emergency room having been shot. Having presented himself for medical treatment, his bloody clothes were cut off him, and they were reasonably seized by law enforcement officers when they were seen in plain view in white … Continue reading

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N.D.Okla.: Not readily finding def in his motel room justified its protective sweep

The protective sweep of defendant’s motel room was reasonable, and it was also justified by a search waiver. There was a woman in the room who was not the defendant they were looking for. United States v. Banegas, 2021 U.S. … Continue reading

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OR: State didn’t develop its argument about RS at the hearing, and it’s found waived

The state’s justification for inquiries about travel plans isn’t reached on appeal because it wasn’t briefed or even developed below. Instead, the questions about it related only to initial reasonable suspicion. “We conclude that the record could have developed differently … Continue reading

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OH12: Stop of bicyclist for no light produced arrest warrant; valid under Strieff

Defendant was stopped on his bicycle for no headlight, and that led to finding an arrest warrant for him. Under Strieff, the legality of the stop becomes almost irrelevant to the search incident for the arrest warrant as attenuated. State … Continue reading

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CA3: Mid-trial suppression argument wasn’t timely

Defendant’s mid-trial suppression motion was untimely despite the defense claim that this was a second search he wasn’t aware of until it came up at trial. United States v. Elcock, 2021 U.S. App. LEXIS 9503 (3d Cir. Apr. 1, 2021). … Continue reading

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CA9: CP SW affidavit didn’t have to exclude possibility of IP spoofing to show PC

Affiant didn’t have to exclude the possibility of IP spoofing in a child pornography case search warrant request to show probable cause . Moreover, it wouldn’t be apparent until the forensic analysis if there was. United States v. Saterstad, 2021 … Continue reading

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D.V.I.: CI’s information of def was commonly known and in paper; yet, GFE applies

The search warrant here was based on the CI’s relating largely publicly-known information, some of which was in the newspaper online. It wasn’t predictive, but all historical of criminal record, the kind of car, etc. This is close but no … Continue reading

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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

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CA9: Changing argument from disputing facts of PC to facts don’t show PC is waiver

“Bruno changed his argument on appeal. In the district court, he disputed the government’s factual representations supporting the search of his apartment. On appeal, he no longer argues that the search warrant application contained factual inaccuracies or material omissions. Rather, … Continue reading

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GA: 4A claim had to be raised at agency hearing level to preserve for appeal

Failure to object on Fourth Amendment grounds at the agency level before the zoning board in a zoning administrative case was waiver for appeal. Forsyth County v. Mommies Props. LLC, 2021 Ga. App. LEXIS 145 (Mar. 11, 2021). “The first … Continue reading

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CA1: Breaking the excessive force claim into parts for analysis results in a denial of QI

The officers do not get qualified immunity in this 1983 case. “Certainly, this was not an ‘obvious case’ where the officers so blatantly violated the Fourth Amendment that recourse to factually analogous case law is unnecessary. Wesby, 138 S. Ct. … Continue reading

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OH12: State’s “reasonable mistake of fact” justification for stop has to be raised in trial court first

The state didn’t rely on a “reasonable mistake of fact” justification for the stop in the trial court, so it can’t for appeal. State v. Turner, 2021-Ohio-541, 2021 Ohio App. LEXIS 564 (12th Dist. Mar. 1, 2021). Defendant had some … Continue reading

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NE requires suppression issue be renewed when evidence admitted at trial

Failure to renew a suppression issue decided against you pretrial when the evidence is admitted is waiver in Nebraska. Besides, the issue on appeal would lose on the merits because the officer had reasonable suspicion for the stop and then … Continue reading

Posted in Burden of pleading, Cell site location information, Good faith exception, Waiver | Comments Off on NE requires suppression issue be renewed when evidence admitted at trial

D.D.C.: Voluntarily providing iPhone passcode during proffer not immune act

Defendant’s providing his iPhone passcode during his proffer session did not immunize the contents of the phone from the government’s use at trial. Kastigar hearing (a misnomer) denied. United States v. Otunyo, 2021 U.S. Dist. LEXIS 30000 (D.D.C. Feb. 18, … Continue reading

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CA10: De novo review overcomes a “skewed” finding of district court

Applying the Ornelas de novo review standard, the court reassesses the evidence and finds reasonable suspicion for the detention. The district court’s view of the evidence of reasonable suspicion was heavily skewed toward the government’s proof. Still, there is reasonable … Continue reading

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CA11: Furtive gesture of hiding a cigarette pack was RS

The furtive gesture of hiding a cigarette pack during a traffic stop was reasonable suspicion (along with a few other reasons, but this is more important). United States v. Williams, 2021 U.S. App. LEXIS 3123 (11th Cir. Feb. 4, 2021). … Continue reading

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