Category Archives: Burden of pleading

OH12: Adoption of suppression motion brief by reference on appeal is waiver

Adoption of his suppression motion brief by reference without briefing it was waiver. Defendant had no reasonable expectation of privacy in a conversation with his girlfriend in the presence of a CI. State v. Davis, 2025-Ohio-2382, 2025 Ohio App. LEXIS … Continue reading

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E.D.Wis.: Heck bar has to be pled in first defensive pleading

The Heck bar is an affirmative defense that has to be pled by defendants under F.R.C.P. 8(c). Megna v. Musial, 2025 U.S. Dist. LEXIS 127980 (E.D. Wis. July 7, 2025). Defendant’s driving justified his stop. State v. Craven, 2025 Wash. … Continue reading

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TX5: State has to prove SW application properly sworn to; no GFE where it wasn’t pled

Where it couldn’t be established that the officer swore to a notary or clerk when applying for a search warrant for blood, the motion to suppress was properly granted. The state doesn’t get the benefit of the good faith exception … Continue reading

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CA10: Ptf has burden on “clearly established law” and failed

The plaintiff in a § 1983 case has the burden on clearly established law, and here the showing completely failed. “Anemic.” Bailey v. Beale, 2025 U.S. App. LEXIS 14449 (10th Cir. June 12, 2025).* “[T]he individual officers did not violate … Continue reading

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N.D.Ind.: Pro se def’s post-trial motion to dismiss for 4A issue he didn’t fully appreciate timely is denied

Pro se defendant can’t raise a post-trial Fourth Amendment claim because he didn’t fully understand the FBI 302 discussing the search. “What Defendant is experiencing are the real-world consequences that he was warned of when he elected to proceed pro … Continue reading

Posted in Burden of pleading, Franks doctrine, Motion to suppress | Comments Off on N.D.Ind.: Pro se def’s post-trial motion to dismiss for 4A issue he didn’t fully appreciate timely is denied

TX5: Def driving his boss’s truck by permission had standing

Defendant driving his boss’s truck by permission had standing. Here, the issue was the scope of his consent to search it. The trial court’s conclusion he only was agreeing that he wasn’t the owner of the truck was sustained on … Continue reading

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CA7: Skeletal 4A claim doesn’t support relief

A caution about pleading in a § 1983 Fourth Amendment case: Plaintiff loses because of his skeletal claims in the complaint. “We express no opinion on whether the officers needed to handcuff Petersen, transport him in a police vehicle to … Continue reading

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CA3: Nodding yes to a request to search was consent

Defendant’s nodding yes to a request to search was consent to search the car. The officers might have believed he didn’t have standing since he was a mere passenger at the time. He didn’t mention facts supporting standing until at … Continue reading

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CA7: Cautionary tale in § 1983 case: “this appeal is a mess”

A confusing case presented from both sides, a cautionary tale: “this appeal is a mess.” Cave v. Valenti, 2025 U.S. App. LEXIS 9405 (7th Cir. Apr. 21, 2025):

Posted in § 1983 / Bivens, Burden of pleading | Comments Off on CA7: Cautionary tale in § 1983 case: “this appeal is a mess”

S.D.N.Y.: SW affidavit differs from crime in indictment such that court grants Franks hearing

Because the affidavit for search warrant differs so much from the ultimate crime defendants were charged with, defendant at least gets a Franks hearing. There’s some suggestion of materiality, but that’s not decided yet. United States v. Peraire-Bueno, 2025 U.S. … Continue reading

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W.D.Mo.: Prior ruling on motion to suppress before speedy trial dismissal was law of the case

Defendant lost a motion to suppress but won a speedy trial dismissal without prejudice. Reindicted, he filed another motion to suppress, but law of the case applies. United States v. Bell, 2025 U.S. Dist. LEXIS 41924 (W.D. Mo. Mar. 7, … Continue reading

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CA6: Franks argument subsumed within PC argument is treated as waived

Defendant’s Franks argument was skeletal and subsumed within his lack of probable cause argument. It is treated as waived. “And we consider arguments forfeited where ‘[i]ssues [are] adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.’” … Continue reading

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OK: Officer outside territorial jurisdiction isn’t a 4A issue

An officer outside his territorial jurisdiction making an arrest does not implicate the Fourth Amendment. Virginia v. Moore. “As previously stated, Appellant does not challenge that Morgan had probable cause to stop him, or that the search of his vehicle … Continue reading

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D.N.H.: Affidavit for SW showed def’s standing

“Examining the totality of the circumstances, the evidence shows that the officers reasonably believed that Guerrero-Nuñez lived in Apartment 204 and would be present when they entered the apartment. As such, their entry into the apartment did not violate Guerrero-Nuñez’s … Continue reading

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OH5: When the trial court sustains a search on two grounds and only one is appealed, the decision will be affirmed

When the trial court sustains a search on two grounds and only one is appealed, the decision will be affirmed. State v. Alexander, 2025-Ohio-236 (4th Dist. Jan. 23, 2025). In an animal seizure case, state law requires a post-seizure administrative … Continue reading

Posted in Administrative search, Burden of pleading, Informant hearsay, Probable cause, Reasonable suspicion, Waiver | Comments Off on OH5: When the trial court sustains a search on two grounds and only one is appealed, the decision will be affirmed

GA: SW for blood BAC doesn’t also allow search for drugs

A search warrant for blood BAC doesn’t also allow search for drugs. State v. Johnson, 2025 Ga. App. LEXIS 18 (Jan. 28, 2025). Defendant was on supervised release and the search of his cell phone producing child pornography was reasonable. … Continue reading

Posted in Burden of pleading, Franks doctrine, Particularity, Probation / Parole search, Warrant execution | Comments Off on GA: SW for blood BAC doesn’t also allow search for drugs

CA7: Even if police potentially escalated the situation, ptf’s use of a gun justified deadly force

Even if the officers failed to properly announce themselves and even if the defendants’ actions exacerbated the possibility of a dangerous confrontation, Ancheta’s action, the use of his gun, was an intervening cause of the deadly force. The defendants escalated … Continue reading

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W.D.N.Y.: Incorrect AUSA assertion about which phone was searched had to be promptly clarified, not when he or she felt like it

Here, the AUSA was apparently confused in pleadings as to which cell phone was searched, a white or black one. When the AUSA learned that the wrong one was spoken of, he or she had a duty to promptly clarify–not … Continue reading

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IA: Federal supervised release search standards apply when leading to state prosecution

Conflict of laws: Where defendant’s supervised release search was by federal officers, federal law controls in state court, not state law. State v. Young, 2024 Iowa Sup. LEXIS 106 (Dec. 20, 2024). A motion to reconsider denial of a Fourth … Continue reading

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CA6: 4A IAC claim requires a showing petitioner would win on the merits of search claim

“And if Derringer intended to argue that counsel should have moved to suppress the cell phone videos, he did not identify any basis for challenging the validity of the search warrant that resulted in the seizure of the cell phone … Continue reading

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