Category Archives: Burden of pleading

NY2: Def has right of access to SW affidavit to attempt to controvert it

Defendant filed his motion to suppress in the blind because didn’t have access to the affidavit for the search warrant. It was denied without a hearing. Remanded: He gets to see it to try to controvert it. People v. Lambey, … Continue reading

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N.D.Ill.: Franks challenge requires there was a SW

Defense counsel wasn’t ineffective for not seeking a Franks hearing where there was no search warrant in the first place. Freeman v. United States, 2019 U.S. Dist. LEXIS 187171 (N.D. Ill. Oct. 29, 2019). Defendant’s general consent to search a … Continue reading

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AK: Inadequate briefing and failure to get ruling on 4A issue below is waiver

“To the extent Kuller is attempting to raise a Fourth Amendment challenge to his probation conditions, this claim is waived due to inadequate briefing. … We also note that Kuller never directly raised a Fourth Amendment claim below and the … Continue reading

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NC: Failure to raise legality of arrest in trial court precluded appellate review

Defendant was an anti-abortion protestor with a sound system, and he was detained for a noise violation after officers with a 3M sound meter found him over the sound ordinance limit. He was to be arrested for that and he … Continue reading

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SD: Def’s search issue on appeal wasn’t presented to the trial court, so it’s waived

Defendant’s claim that evidence discovering during a traffic stop had to be suppressed because the duration of the stop was unlawful was waived because he failed to advance that argument before the trial court. State v. Willingham, 2019 SD 55, … Continue reading

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OR: Appeal of order of mother in juvenile case to provide UAs affirmed for an insufficient appellate record

The mother of a juvenile was ordered to give observed UAs as a part of a dependency-neglect proceeding. She didn’t provide a sufficient appellate record to decide whether the trial court’s order violated the state constitution, so it’s affirmed. Dep’t … Continue reading

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C.D.Cal.: Evidence at trial came from a prior unrelated search; the parties should stipulate that it happened to avoid unnecessary confusion

This is on the government’s motion in limine concerning how evidence at trial should come in. The government had a search warrant for theft, and that was the way into his house. To avoid problematic questions, the court suggests a … Continue reading

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LA5: Failure to raise scope of search issue below was waiver on appeal

The officer affiant adequately corroborated the CI to show probable cause. Defendant’s argument that the search of his house under the warrant couldn’t include the back yard was not preserved below [but it usually would be valid anyway]. State v. … Continue reading

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MA: Calls from juvenile detention have no REP

Phone calls in juvenile detention were properly recorded. Defendant was on notice of recording. Commonwealth v. Odgren, 483 Mass. 41 (Sept. 4, 2019). In an immigration case where the petitioner bears the burden of showing an egregious violation of the … Continue reading

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Two on waiver for failure to litigate issues

Defendant waived any claims on officer’s reliance on an APB for never having mentioned it in his motion to suppress. Commonwealth v. Santos, 2019 Mass. App. LEXIS 107 (Aug. 26, 2019).* Defendant litigated his statement as coming from an illegal … Continue reading

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D.P.R.: Calling an out of time motion to suppress a motion in limine doesn’t get around the time limits

Calling an out of time motion to suppress a motion in limine doesn’t get around the time limits. It was 14 months too late, and trial starts tomorrow. United States v. Fígaro-Benjamín, 2019 U.S. Dist. LEXIS 141655 (D. P.R. Aug. … Continue reading

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TN: Codefendant suppressed contents of a camera, but def can’t because no standing

Codefendant succeeded in suppressing photographs from an illegally seized camera. This defendant, however, had no property or privacy interest in the camera and thus no standing. State v. McClancy, 2019 Tenn. Crim. App. LEXIS 473 (Aug 10, 2019).* State’s notice … Continue reading

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