Category Archives: Ineffective assistance

FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone

Defendant’s victim claimed to the police she was met through a phone app, sexually battered, and robbed. She identified defendant by his truck. “This information would have been enough to obtain a search warrant of Ferguson’s cell phones, even without … Continue reading

Posted in Cell phones, Ineffective assistance, Probable cause, Probation / Parole search, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone

N.-M.: “Health and welfare” check justification for search of off-base housing was shown in IAC claim to be subterfuge

Defense counsel was ineffective for not raising the issue that the “health and welfare” check justification for searching his off-base housing was really a subterfuge for a criminal search. United States v. McCall, 2021 CCA LEXIS 206 (N.-M. Ct. Crim. … Continue reading

Posted in Community caretaking function, Emergency / exigency, Ineffective assistance | Comments Off on N.-M.: “Health and welfare” check justification for search of off-base housing was shown in IAC claim to be subterfuge

WI: Burning mj in a house is exigency of evidence being destroyed by burning

The smell of burning marijuana is exigent circumstances because the contraband is being destroyed by burning. State v. B.W.R., 2021 Wisc. App. LEXIS 201 (Apr. 28, 2021) (unpublished). Under Birchfield, “An increased penalty for the warrantless blood draw refusal revocation … Continue reading

Posted in Collective knowledge, Drug or alcohol testing, Emergency / exigency, Franks doctrine, Ineffective assistance, Reasonable suspicion | Comments Off on WI: Burning mj in a house is exigency of evidence being destroyed by burning

MD: Not IAC for defense counsel to confirm witness testimony before filing motion to suppress; which here didn’t matter

Defendant contended the search of his place was before the warrant issued at 12:01 am March 1st. It was not ineffective assistance for counsel to attempt to talk to witnesses before filing a motion to suppress. Even if the police … Continue reading

Posted in Ineffective assistance, Protective sweep | Comments Off on MD: Not IAC for defense counsel to confirm witness testimony before filing motion to suppress; which here didn’t matter

M.D.Pa.: Calling for backup before asking motorist for consent was the “Rodriguez moment” but it was with RS

“‘[T]he proper inquiry is not whether a traffic violation actually occurred, but rather whether there are facts presented that would lead a reasonable officer to believe that a violation may have occurred.’ … ‘This standard is not particularly rigorous, as … Continue reading

Posted in Excessive force, Ineffective assistance, Reasonable suspicion | Comments Off on M.D.Pa.: Calling for backup before asking motorist for consent was the “Rodriguez moment” but it was with RS

CA11: Assuming geo-location info for def’s cell phone was illegally obtained, it was harmless BRD

“We assume without deciding that the district court erred in allowing the admission of the Google geo-location data during trial because it amounted to fruit of the poisonous tree, and no exception applied. Nevertheless, Pendergrass is not entitled to a … Continue reading

Posted in GPS / Tracking Data, Ineffective assistance, Warrant execution | Comments Off on CA11: Assuming geo-location info for def’s cell phone was illegally obtained, it was harmless BRD

D.Neb.: CI report led to controlled buy and that was PC

A CI with a reliable track record reported defendant was selling ecstacy. That alone was likely at least reasonable suspicion, but then police used him to make a controlled buy, and that was probable cause for the stop. United States … Continue reading

Posted in Excessive force, Ineffective assistance, Probable cause | Comments Off on D.Neb.: CI report led to controlled buy and that was PC

E.D.Mo.: Constitutionality of window tint statute doesn’t have anything to do with PC for a stop for overtinting

Even if Missouri’s window tint statute was unconstitutional, something in doubt, it wouldn’t have any affect on the reasonableness of defendant’s stop for violating it, and the exclusionary rule would not apply. Factually, the officer said he couldn’t see into … Continue reading

Posted in Excessive force, Exclusionary rule, Good faith exception, GPS / Tracking Data, Ineffective assistance | Comments Off on E.D.Mo.: Constitutionality of window tint statute doesn’t have anything to do with PC for a stop for overtinting

W.D.Ky.: Out past curfew during BLM protests was PC for stop

Officers seeing defendant driving during a BLM protest curfew in June 2020 in Louisville had probable cause for the stop. United States v. Shrivers, 2021 U.S. Dist. LEXIS 77047 (W.D. Ky. Apr. 21, 2021).* A CI with a reliable track … Continue reading

Posted in Ineffective assistance, Informant hearsay, Probable cause, Warrant execution | Comments Off on W.D.Ky.: Out past curfew during BLM protests was PC for stop

WI: Consent to search a computer was limited to def’s son’s user files; forensically searching recycle bin exceeded the scope of consent

Defendant granted consent to search only his son’s files on his computer. The forensic analyst searched the recycle bin, too, and that exceeded the scope of consent. Shared files were not within the scope of consent. State v. Jereczek, 2021 … Continue reading

Posted in Consent, Ineffective assistance, Scope of search | Comments Off on WI: Consent to search a computer was limited to def’s son’s user files; forensically searching recycle bin exceeded the scope of consent

GA: Valid strategic choice to forego search claim to support defense

Involving pre-Carpenter CSLI, the defense had valid strategic reasons to forego a motion to suppress to support the defense arguments at trial. “Because we hold that Thomas’s trial counsel did not perform deficiently because she had a reasonable strategic purpose … Continue reading

Posted in Cell site location information, Good faith exception, Ineffective assistance | Comments Off on GA: Valid strategic choice to forego search claim to support defense

D.Minn.: Because tracking order affiant was fired for falsifying other tracking requests doesn’t mean this one was false when def can’t show anything

Defense counsel wasn’t ineffective for not challenging the tracking warrant in defendant’s case based on the fact the officer who got it was fired for falsifying other tracking orders. “Bettis alleges that his counsel was ineffective by failing to challenge … Continue reading

Posted in Ineffective assistance, Unreasonable application / § 2254(d) | Comments Off on D.Minn.: Because tracking order affiant was fired for falsifying other tracking requests doesn’t mean this one was false when def can’t show anything

IL: CSLI 11 years before Carpenter obtained in good faith

CSLI data obtained 11 years before Carpenter was obtained in good faith at the time and would not be suppressed. People v. Potts, 2021 IL App (1st) 161219, 2021 Ill. App. LEXIS 166 (Mar. 31, 2021). Defense counsel was not … Continue reading

Posted in Cell site location information, Drug or alcohol testing, Good faith exception, Ineffective assistance | Comments Off on IL: CSLI 11 years before Carpenter obtained in good faith

DE: Wiretap info in affidavit for SW showed nexus to cell phone

The affidavit showed probable cause for the search warrant, and nexus to his cell phone and the crime under investigation is shown in a wiretap. Anderson v. State, 2021 Del. LEXIS 121 (Mar. 30, 2021).* Defendant did not show a … Continue reading

Posted in Cell phones, Ineffective assistance, Nexus, Standing | Comments Off on DE: Wiretap info in affidavit for SW showed nexus to cell phone

E.D.N.Y.: Summons to appear is not a 4A seizure

A summons to appear is not a seizure. Jianjun Li v. Village of Saddle Rock, 2021 U.S. Dist. LEXIS 60705 (E.D. N.Y. Mar. 30, 2021). New York statute that special prosecutors have to give notice to elected DAs about, inter … Continue reading

Posted in Ineffective assistance, Seizure, Warrant requirement | Comments Off on E.D.N.Y.: Summons to appear is not a 4A seizure

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

TX5: Lack of a timely return doesn’t warrant suppression despite mandatory language of statute

A lack of return isn’t a basis for suppression. “Although the requirements set forth in this provision of the code of criminal procedure appears to be mandatory, courts have consistently held that ministerial violations of the search warrant statutes do … Continue reading

Posted in Ineffective assistance, Warrant execution | Comments Off on TX5: Lack of a timely return doesn’t warrant suppression despite mandatory language of statute

CT: Both halves of a duplex can’t be searched under a warrant for one

A search of both halves of a duplex under a search warrant for one was unreasonable and had to be suppressed. State v. Lyons, 2021 Conn. App. LEXIS 100 (Mar. 30, 2021). Defense counsel wasn’t ineffective for not challenging the … Continue reading

Posted in Franks doctrine, Ineffective assistance, Overseizure, Scope of search | Comments Off on CT: Both halves of a duplex can’t be searched under a warrant for one

NY3: CI’s alleged false statement wasn’t enough to suppress

As to an alleged false statement by the CI, it didn’t undermine the probable cause finding. People v. Cazeau, 2021 NY Slip Op 01806, 2021 N.Y. App. Div. LEXIS 1947 (3d Dept. Mar. 25, 2021) (nearly four years from judgment … Continue reading

Posted in Ineffective assistance, Informant hearsay | Comments Off on NY3: CI’s alleged false statement wasn’t enough to suppress

TX5: SW to seize blood for BAC also allows analysis

Texas already settled the issue that a search warrant to take blood implicitly includes the ability to test it. State v. Armstrong, 2021 Tex. App. LEXIS 2162 (Tex. App. – Dallas Mar. 22, 2021).* The stop was reasonably extended because … Continue reading

Posted in Drug or alcohol testing, Ineffective assistance, Reasonable suspicion | Comments Off on TX5: SW to seize blood for BAC also allows analysis