Category Archives: Burden of pleading

NY2: “Defense counsel’s equivocal, vague and conclusory statements that defendant had standing to challenge the searches” has no offer of proof or facts

“The court correctly denied, on the ground of lack of standing as well as on the merits, defendant’s motion to controvert two search warrants. Defense counsel’s equivocal, vague and conclusory statements that defendant had standing to challenge the searches of … Continue reading

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AR: Claim of misstatement or incorrect fact in SW affidavit doesn’t state Franks claim without allegation it was reckless or intentional

Merely stating that information in the affidavit for search warrant was incorrect doesn’t preserve a Franks challenge without also alleging that it was recklessly or intentionally made. King v. State, 2019 Ark. 114, 2019 Ark. LEXIS 125 (Apr. 18, 2019). … Continue reading

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W.D.Mo.: Boilerplate Franks claim fails on its face

“The defendant’s boilerplate claim that the ‘information used to obtain the search warrant from the Circuit Court judge was flawed with false allegation….’, … does not meet the Franks test for a hearing.” “While defendant did not explicitly argue that … Continue reading

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E.D.Ky.: Pleading a constitutional violation without saying how preserves nothing for review

“Cruz next present a series of direct challenges, obviously hoping one will stick. He generally asserts that his ‘conviction and sentence are violative of the First, Second, Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution.’ (DE 32, at 7). … Continue reading

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IA: The facts showing RS can also add up to PC

The facts supporting reasonable suspicion to stop defendant were enough for probable cause, and add to that the fact defendant slowed down and tossed a baggie of marijuana from the car. Mention in a search warrant of a Nevada drug … Continue reading

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OH8: State had to argue plain view to trial court to argue it on appeal

The state’s plain view argument wasn’t pressed in the trial court, so it can’t be a basis for appeal. Even on the merits, the state loses because the stop was invalid, and the detention unreasonable all before the alleged plain … Continue reading

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AR: Argument that SW was required not subpoena for text messages that came day after admission into evidence was waived

The defense argument that text messages were obtained by subpoena not search warrant was not preserved for review when the defense waited until the next day to object. Even if it had been preserved, the argument wasn’t fully developed, and … Continue reading

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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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