{"id":34294,"date":"2018-08-17T08:17:19","date_gmt":"2018-08-17T13:17:19","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=34294"},"modified":"2018-08-17T08:17:32","modified_gmt":"2018-08-17T13:17:32","slug":"ca2-motion-to-reopen-suppression-hearing-for-alleged-iac-was-subject-to-abuse-of-discretion-not-abused-here","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=34294","title":{"rendered":"CA2: Motion to reopen suppression hearing for alleged IAC was subject to abuse of discretion; not abused here"},"content":{"rendered":"<p>Defendant attempted to reopen his suppression hearing based on alleged ineffective assistance by former counsel. The trial court denied the motion based on a credibility determination of the witnesses. The place to bring the IAC claim is in post-conviction. The denial of the motion to reopen was within the discretion of the trial court. <a href=\"http:\/\/www.ca2.uscourts.gov\/decisions\/isysquery\/7b055692-062f-49e8-b905-3dfe0f421699\/1\/doc\/17-2279_so.pdf\">United States v. Person<\/a>, 2018 U.S. App. LEXIS 22448 (2d Cir. Aug. 14, 2018).<\/p>\n<p>Defendant stop at the Albuquerque Greyhound station turned nonconsensual. \u201cSA Perry and TFO Davis attempted to conduct a consensual encounter. The Court has considered that the agents used non-aggressive tone, did not show their weapons, and that the interaction took place in an open, public space. However, several aspects of the encounter lead the Court to conclude that a reasonable person would not have felt free to leave. Accordingly, the Court finds that Mr. Garcia-Garibay&#8217;s consent to a dog sniff was not voluntary and obtained in violation of the Fourth Amendment. The methamphetamine seized must be suppressed.\u201d United States v. Garcia-Garibay, 2018 U.S. Dist. LEXIS 136888 (D.N.M. Aug. 14, 2018).*<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Defendant attempted to reopen his suppression hearing based on alleged ineffective assistance by former counsel. The trial court denied the motion based on a credibility determination of the witnesses. The place to bring the IAC claim is in post-conviction. The &hellip; <a class=\"more-link\" href=\"https:\/\/fourthamendment.com\/?p=34294\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24,23],"tags":[],"class_list":["post-34294","post","type-post","status-publish","format-standard","hentry","category-consent","category-ineffective-assistance"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/34294","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=34294"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/34294\/revisions"}],"predecessor-version":[{"id":34295,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/34294\/revisions\/34295"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=34294"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=34294"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=34294"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}