Category Archives: Burden of pleading

LA1: Changing suppression issue on appeal from lack of PC to arrest to an unreasonable search is waiver of the issue

Defendant’s motion changed from probable cause to arrest to whether there was an unreasonable search and seizure between the suppression hearing and the appeal. Thus, the issue for appeal wasn’t presented to the trial court, so it’s not preserved for … Continue reading

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LA1: Not filing a motion and putting on proof on suppression issue gets it denied; but we’ll let you try it again

Making a constitutional argument about the implied consent law in opening statement and closing argument without a motion or briefing it is insufficient. Yet, remanded so he can do it again. [Not in most states; it would be denied and … Continue reading

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GA: An issue briefed but not heard at the suppression hearing was fairly presented and preserved

A newer issue raised in a post-hearing brief on the motion to suppress was a part of the motion when it was decided by the trial court. A padlock on a door and a fan running inside does not support … Continue reading

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CA10: You can’t tell the court it needs to apply the independent source case law a certain way and then complain on appeal that it did what you asked

This case started with hotel housekeeping coming in to clean a room and seeing obvious drug paraphernalia. The police were called, and they were shown. A search warrant was prepared showing probable cause to connect defendants to the room by … Continue reading

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PA: Private university public safety conducted dorm searches for drugs after drug induced fight; it was a private search

Defendant was a student at Villanova University. There was a violent confrontation in a dorm between students who had admitted ingesting likely too much LSD. The University’s Public Safety Department and University officials conducted dorm searches. They had no arrest … Continue reading

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CA4: Pre-Carpenter gathering of CSLI subject to GFE

Pre-Carpenter gathering of CSLI subject to good faith exception. United States v. Christian, 2018 U.S. App. LEXIS 25580 (4th Cir. Sep. 10, 2018). Defendant didn’t object to the R&R recommending denial of his search claim, and the R&R is adopted. … Continue reading

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CA11: Hot pursuit of a misdemeanant into a dwelling is permitted by the 4A

Hot pursuit of a misdemeanant into a dwelling is permitted by the Fourth Amendment, and observation of drugs was valid. United States v. Concepcion, 2018 U.S. App. LEXIS 25001 (11th Cir. Sep. 4, 2018). Defendant’s claim that his confession was … Continue reading

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W.D.Ky.: Facially valid arrest warrant not undermined by def’s claim he had an alibi for crime

Defendant argues that the execution of the arrest warrant on him in his own house was invalid because he had an alibi for the time of the crime. That’s not up to the executing officers. The warrant was facially valid. … Continue reading

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D.Conn.: Def didn’t provide an affidavit of his standing, but his offer of proof and then actual proof showed it

Defendant claimed for trial that while he was a visitor at the premises searched under the warrant, he still had standing because he was a guest there and a paying tenant at times. He didn’t provide an affidavit, but he … Continue reading

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D.Conn.: Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis

Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis. United States v. Blake, 2018 U.S. Dist. LEXIS 141895 (D. Conn. Aug. 20, 2018). “Here, Rivarola does not explain what, if anything, further investigation by his prior … Continue reading

Posted in Burden of pleading, Cell site location information, Good faith exception, Ineffective assistance | Comments Off on D.Conn.: Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis

W.D.Ark.: When challenging SW, def has burden of pleading to attach the SW and affidavit to the motion to suppress

When challenging a search warrant, the defendant needs to attach the warrant and affidavit to the motion to suppress. The government did instead. Here, the search warrant wasn’t even needed because there was probable cause for a vehicle search under … Continue reading

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M.D.Tenn.: Def’s continual distancing himself in pleadings and at hearing from the cell phone at issue shows no standing

Defendant went to great lengths to distance himself from telephone 3 that was tracked in the suppression motion and hearing. Therefore, he has no standing to challenge the collection of CSLI on it. Carpenter and Byrd do not, as defendant … Continue reading

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