Category Archives: Ineffective assistance

ID: Not unreasonable to check wants and warrants on passenger during a traffic stop

“This appeal arises out of a traffic stop where a single officer, without having reasonable suspicion that a crime involving the passenger was afoot, checked the passenger for outstanding warrants. The officer used her patrol vehicle’s computer and received a … Continue reading

Posted in Dog sniff, Ineffective assistance, Inventory, Reasonable suspicion | Comments Off on ID: Not unreasonable to check wants and warrants on passenger during a traffic stop

RI: Commercial fishing is a “closely regulated industry” and a vessel’s monitoring system could be examined

Commercial fishing is a closely regulated industry. “Appellant also had a sea scallop permit, requiring the vessel to have a vessel monitoring system (VMS), which transmits global positioning system (GPS) coordinates every half hour to the National Marine Fisheries Service.” … Continue reading

Posted in Administrative search, Dog sniff, Ineffective assistance, Reasonable suspicion, Reasonableness | Comments Off on RI: Commercial fishing is a “closely regulated industry” and a vessel’s monitoring system could be examined

D.Minn.: Tracking warrant issued without PC, but GFE still applied

There was no probable cause for the tracking warrant for defendant. But, it was not so lacking in probable cause that the good faith exception does not apply. United States v. Escudero, 2022 U.S. Dist. LEXIS 89120 (D.Minn. May 18, … Continue reading

Posted in Franks doctrine, Good faith exception, GPS / Tracking Data, Ineffective assistance, Reasonable suspicion | Comments Off on D.Minn.: Tracking warrant issued without PC, but GFE still applied

UT: IAC shown for not challenging dog alert

The initial dog alert here did not provide probable cause for search of defendant’s vehicle. Thus, defense counsel was ineffective for not pursuing a Fourth Amendment challenge. “In summary, based on the record before us, a motion to suppress the … Continue reading

Posted in Burden of pleading, Dog sniff, Ineffective assistance, Motion to suppress, Standing | Comments Off on UT: IAC shown for not challenging dog alert

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

CA11: Def’s innocent explanation for his behavior still left PC

Defendant’s innocent explanation for his behavior still left probable cause. United States v. Clark, 2022 U.S. App. LEXIS 11504 (11th Cir. Apr. 28, 2022). Defendant was arrested two weeks after a string of robberies, and his cell phone was taken … Continue reading

Posted in Good faith exception, Ineffective assistance, Probable cause, Reasonableness | Comments Off on CA11: Def’s innocent explanation for his behavior still left PC

NY Kings Co.: “There is no Fourth Amendment principle that forbids a police officer from being pleased at having found an illegal weapon”

“Set against the obvious reality that a well-documented full and proper inventory was carried out here, I do not find the mere fact that after spotting the gun at the outset, Officer Duran exclaimed, ‘that was easy,’ and ‘Now it’s … Continue reading

Posted in Ineffective assistance, Inventory | Comments Off on NY Kings Co.: “There is no Fourth Amendment principle that forbids a police officer from being pleased at having found an illegal weapon”

D.Mont.: Acting strange walking down the street is not RS

“While Vasquez was indeed acting strangely, for the stop to be valid, his conduct must be indicative of criminal behavior. The Court here simply cannot bridge the connection between the conduct here that is suspicious or odd in the lay … Continue reading

Posted in Ineffective assistance, Reasonable suspicion, Waiver | Comments Off on D.Mont.: Acting strange walking down the street is not RS

E.D.N.C.: Violation of state SW statutes and rules not a 4A violation

Violation of state statutes or rules in issuing search warrants is not a Fourth Amendment issue. And, nexus was shown: “So interpreting the affidavit, and based on the totality of the circumstances including the role cell phones generally play in … Continue reading

Posted in Ineffective assistance, Reasonableness | Comments Off on E.D.N.C.: Violation of state SW statutes and rules not a 4A violation

E.D.Ark.: City’s court order made clean up and removal of ptf’s property reasonable

Plaintiff was told for years to clean up his property from unsightly construction materials and equipment. After many failed efforts to get him to do so, the city obtained a court order to remove the property. It removed nine trailerloads … Continue reading

Posted in Administrative search, Excessive force, Ineffective assistance, Reasonableness, Seizure | Comments Off on E.D.Ark.: City’s court order made clean up and removal of ptf’s property reasonable

CA10: Def’s actions were completely consistent with innocence and did not add up to RS

The officer did not have reasonable suspicion for defendant’s stop or its continuation. Defendant’s actions were consistent with somebody who had nothing to hide, and the district court’s findings got no presumption of correctness. Denial of the suppression motion reversed. … Continue reading

Posted in Ineffective assistance, Reasonable suspicion, Voluntariness | Comments Off on CA10: Def’s actions were completely consistent with innocence and did not add up to RS

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

E.D.N.Y.: Visual surveillance of a car in a parking lot is not a search; no REP in the license plate

Visual surveillance of plaintiff’s car in a parking lot is not a search. “Mr. Porter alleges that Investigator Tucci committed an unreasonable search by conducting surveillance of his vehicle in a parking lot and by looking up his plate and … Continue reading

Posted in Ineffective assistance, Probable cause, Reasonable expectation of privacy | Comments Off on E.D.N.Y.: Visual surveillance of a car in a parking lot is not a search; no REP in the license plate

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

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

CA2: Swearing to arrest warrant at direction of a prosecutor does not confer prosecutorial immunity

“Long-standing precedent makes clear that swearing to an arrest warrant affidavit and executing an arrest are traditional police functions, and performing such functions at the direction of a prosecutor does not transform them into prosecutorial acts protected by absolute immunity.” … Continue reading

Posted in Arrest or entry on arrest, Independent source, Ineffective assistance, Privileges | Comments Off on CA2: Swearing to arrest warrant at direction of a prosecutor does not confer prosecutorial immunity

W.D.Ky.: Non-answers to questions added to RS

There was reasonable suspicion here from the officer’s observations and defendant’s non-answers to questions. United States v. Dunn, 2022 U.S. Dist. LEXIS 41610 (W.D.Ky. Mar. 9, 2022).* Not filing a motion to suppress here was not ineffective assistance. Defendant was … Continue reading

Posted in Collective knowledge, Ineffective assistance, Reasonable suspicion | Comments Off on W.D.Ky.: Non-answers to questions added to RS

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

N.D.Ga.: Officers can enter a bathroom for a protective sweep

The protective sweep of the bathroom was justified and defendant’s claim the officers didn’t need to enter the bathroom to look is rejected. United States v. Perez, 2022 U.S. Dist. LEXIS 26275 (N.D.Ga. Feb. 15, 2022). Plaintiff inmate’s claim that … Continue reading

Posted in Ineffective assistance, Protective sweep | Comments Off on N.D.Ga.: Officers can enter a bathroom for a protective sweep