Category Archives: Standards of review

WV: Officer admitted prior testimony was erroneous; not incredible as a matter of law

The officer obtaining the search warrant here was found to have mistakenly testified in federal court that he did not personally present this warrant to the magistrate. Admission of that mistake was credited here that he did present the affidavit. … Continue reading

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CA11: Failure to seek review of R&R is waiver

Defendant did not seek review of the R&R by the USDJ, so appellate review was waived. Also, plain error review not sought. United States v. Fisher, 2021 U.S. App. LEXIS 37847 (11th Cir. Dec. 21, 2021). Citizen complaint from the … Continue reading

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CA2: SW said “electronics” and “passwords” to access them, but it did not say “computers”; those words mean computers

The search warrant used the word “electronics” and “passwords” to access them, but it did not say “computers.” “Because the warrant specifically permitted seizure of “electronics,” a category into which computers and tablets would fall under the plain text, not … Continue reading

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CA8: Child porn knock-and-talk leads to valid exigency-based warrantless entry

This case started with a knock-and-talk about defendant visiting websites involving commercial sex acts with children. “While talking with William Meyer outside his home, federal agents grew worried that, if he went back inside, he would destroy evidence. Rather than … Continue reading

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CA1: Stopping def’s vehicle by heading into it was a seizure, and here it was with PC

Defendant’s vehicle “containment” where police stopped him by coming front bumper to bumper was a seizure under Brower v. County of Inyo. He attempted to flee by backing into other police cars and a civilian’s car. The seizure was with … Continue reading

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CO: Abuse of discretion standard applies to expanding search issues on remand

The abuse of discretion standard applies to trial courts permitting the parties to make additional arguments or put on additional evidence on remand within the scope of the remand. The appellate court’s standard is rejected. People v. Tallent, 2021 CO … Continue reading

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OH1: Exclusionary rule doesn’t apply in probation revo proceedings

The exclusionary rule does not apply to probation revocation proceedings. (Defendant relies on a 1983 case overruled in 1996.) State v. Richardson, 2021-Ohio-3362, 2021 Ohio App. LEXIS 3302 (1st Dist. Sept. 24, 2021). Defendant’s 2255 reasserts numerous claims, one of … Continue reading

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E.D.Pa.: This judge wouldn’t have signed this SW, but that’s not the standard of review

While this judge wouldn’t have issued the search warrant on the information provided, that’s not the standard of review. There was, in fact, a substantial basis for finding probable cause. United States v. Moore, 2021 U.S. Dist. LEXIS 178263 (E.D.Pa. … Continue reading

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D.N.J.: Review in a motion to suppress is not de novo

The affidavit for search warrant was based on probable cause. Review in a motion to suppress is not de novo. United States v. Harper, 2021 U.S. Dist. LEXIS 162543 (D.N.J. Aug. 26, 2021). Defendant was stopped with reasonable suspicion, and … Continue reading

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ND: When video contradicts officer, trial court’s credibility determination isn’t binding

Where the video of the stop clearly contradicts the officer’s testimony on the basis for the stop, the appellate court can reject the trial court’s credibility finding. Here, it was whether defendant’s license plate light worked. The video showed it … Continue reading

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E.D.Tenn.: You post to Facebook at your peril; there is no REP in Facebook “friends”

There is no reasonable expectation of privacy in Facebook posts, no matter who reads them, “friend” or not. Defendant posts to Facebook at his peril. Moreover, he already lost this in the Sixth Circuit. Farrad v. United States, 2021 U.S. … Continue reading

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SD: Failure to put video of stop in record limits review of lack of consent claim

Failure to put the video of defendant’s stop in the record means the court can’t consider it on appeal, and it goes from the trial court’s findings. State v. Slepikas, 2021 SD 43, 2021 S.D. LEXIS 82 (July 21, 2021) … Continue reading

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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

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CA1: Failure to object to R&R was waiver for appeal

Defendant’s failure to object to the R&R on a search claim was waiver of the issue for appeal. United States v. Maldonado-Peña, 2021 U.S. App. LEXIS 19508 (1st Cir. June 30, 2021). Motorist passed out at the wheel and the … Continue reading

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D.Kan.: Seizure under part of SW without PC is suppressed, but remainder valid

“Whitmore’s motions are granted in part and denied in part. Specifically, his motion to exclude evidence from his arrest is denied. With respect to the search of the cell phone, the affidavit provides no probable cause for seeking evidence of … Continue reading

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S.D.W.Va.: Def unaware he was blocked in his car wasn’t “seized”

“Inasmuch as Mr. Mitchem was unaware that his car was blocked given his somnambulant state, the mere blocking of his vehicle is of no Fourth Amendment consequence.” United States v. Mitchem, 2021 U.S. Dist. LEXIS 118388 (S.D. W.Va. June 25, … Continue reading

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S.D.Ga.: Attacking dashcam video unavailing where credibility of officer seeing gun wasn’t challenged

“Harris’ objection to the Magistrate Judge’s recommendation that the seizure of the firearm was permissible focuses on whether the submitted video evidence clearly showed that the object in his waistband was a firearm, and whether the officers had sufficient reasonable … Continue reading

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M.D.Pa.: ISP’s duty to report CP under 18 U.S.C. § 2258A doesn’t make it still not a private search

Kik’s duty to report child pornography on its platform under 18 U.S.C. § 2258A doesn’t make its search still not a private search. United States v. Hart, 2021 U.S. Dist. LEXIS 111166 (M.D. Pa. June 14, 2021). The trial court … Continue reading

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N.D.Ind.: Officer’s lack of credibility results in finding of no RS

The court finds the officer’s testimony and credibility completely lacking on the basis for the stop and grants the motion to suppress. United States v. McGibney, 2021 U.S. Dist. LEXIS 110826 (N.D. Ind. June 14, 2021).* Execution of a search … Continue reading

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CA9: Defendant had standing in his hotel room despite having no REP in a stolen laptop in the room

Defendant had standing to challenge the search of his hotel room, but he did not have any reasonable expectation of privacy in a stolen laptop he possessed. If the entry into the hotel room is unreasonable, the seizure of the … Continue reading

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