Category Archives: Burden of pleading

OR: Def adequately pled 4A and argued substance to preserve issue for appeal

Defendant preserved her Fourth Amendment claim by citing it in the motion and by arguing at the hearing the stop was impermissibly extended. “Although the question is close, we agree with defendant that her Fourth Amendment argument is adequately preserved … Continue reading

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CA10: A verbal judicial order to enter a house to take a child into custody is the equivalent of a warrant

A verbal judicial order to enter a house to take a child into custody is the equivalent of a warrant. Duran v. Muse, 2018 U.S. App. LEXIS 11481 (10th Cir. May 3, 2018). Motion to suppress was untimely and denied … Continue reading

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NY4: Def’s actions supported PC for a body SW

Officers executing a search warrant saw defendant acting like he had something hidden in the back of his pants. Defendant’s squirming and clenching his butt strongly suggested to the officer that he had drugs hidden in his rectum. The search … Continue reading

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W.D.N.Y.: “Affidavit of personal knowledge” to show standing isn’t satisfied by the officer’s police reports

The Second Circuit requires an affidavit of personal knowledge to establish standing to contest a search. The officer’s report wasn’t enough just because the officer believed that defendant’s residence was the target of the search. United States v. Lewis, 2018 … Continue reading

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N.D.Ind.: A motion for new trial is too late to raise new grounds to suppress

Defendant litigated a motion to suppress and lost. In a motion for new trial, he raised new grounds, and this is rejected as untimely. United States v. Bishop, 2018 U.S. Dist. LEXIS 57353 (N.D. Ind. Apr. 4, 2018). Defendant’s stop … Continue reading

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MS: “Catch all” phrase in SW that permitted seizure of that which was found in plain view was merely a restatement of the plain view doctrine

A “catch all” phrase that permitted seizure of that which was found in the course of a valid search was merely a restatement of the plain view doctrine, and that doesn’t justify suppression. Defendant’s other scope of search claim was … Continue reading

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OK: Plain error review of SW fails for lack of a record

Defendant didn’t challenge the search warrant for his DNA in the trial court, so the issue is addressed on plain error. Since the search warrant and affidavit in support aren’t in the record, defendant fails in bringing up a record … Continue reading

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IA: IAC Franks claim was speculative; def claims no facts at all

Defendant filed an ineffective assistance of counsel claim alleging that if defense counsel had investigated the officer’s allegations he’d have found a Franks challenge. This was purely speculative because not a word was provided about what such an investigation would … Continue reading

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IN: Landlord saw blood in the property and called the police; this was a valid emergency entry

Defendant was an emergency contact on the property, but he lived in Chicago, not at the apartment. Therefore, he had no standing. On the merits, the landlord checked on the property and saw blood stains inside. He called police for … Continue reading

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Army: Specific issue of using computer to aid iPhone search waived by not presenting to trial court

On appeal defendant conceded the lawfulness of the seizure of his iPhone. Army investigators allegedly illegally seized a computer as well. All the trial court litigation never raised the question of the use of the computer, too, so that’s waived. … Continue reading

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OR: Def disavowed consent issue in trial court, so he couldn’t argue it on appeal

Defendant disavowed the argument made on appeal in the trial court, and you just can’t do that. “Defendant failed to preserve his argument because he failed to provide the trial court with an objection, let alone ‘an explanation of his … Continue reading

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KY: Police use of license plate reader violates no REP

Police use of a license plate reader that led to finding a warrant on the owner violated no reasonable expectation of privacy. Traft v. Commonwealth, 2018 Ky. LEXIS 68 (Feb. 15, 2018). In a state wiretapping case over the legal … Continue reading

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