Category Archives: Burden of pleading

S.D.Ohio: City’s mowing unkempt yard wasn’t 4A violatoin

The city’s coming on to a sovereign citizen’s yard to mow it when he refused did not violate the Fourth Amendment. Prows v. City of Oxford, 2024 U.S. Dist. LEXIS 177976 (S.D. Ohio Sep. 30, 2024).* Defendant’s motion for return … Continue reading

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CT: Exigency shown for animal control entry

“Our scrupulous examination of the entire record supports the court’s conclusion that the officers had reasonable cause to believe that the dogs contained within the barn were in imminent harm and neglected, or cruelly treated.” City of Middletown v. Wagner, … Continue reading

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OR: The burden on whether the affidavit was with the warrant at the search is on defendant

When the affidavit satisfies particularity but the defendant alleges the warrant doesn’t, he has the burden of proving that both were not attached to each other or at the scene of the search for guidance. State v. Goode, 335 Or. … Continue reading

Posted in Burden of pleading, Cell site location information, Particularity, Probable cause | Comments Off on OR: The burden on whether the affidavit was with the warrant at the search is on defendant

M.D.Pa.: Def’s Franks challenge fails for being vague as to what was inadequate and even which warrants were being challenged

“First, on a fundamental level, Bressi’s Franks request is insufficiently specific for this Court to reconstruct the warrants. Bressi does not point to a specific search warrant he claims was obtained through Agent O’Malley’s intentional or reckless disregard for the … Continue reading

Posted in Burden of pleading, Cell phones, Franks doctrine, Probable cause, Waiver | Comments Off on M.D.Pa.: Def’s Franks challenge fails for being vague as to what was inadequate and even which warrants were being challenged

C.D.Cal.: Motion to suppress admitting no facts is denied as speculative

Defendant’s motion to suppress admitting no knowledge of the facts is denied as speculative. United States v. Lipman, 2024 U.S. Dist. LEXIS 158940 (C.D. Cal. Sep. 4, 2024). “Here, the totality of the circumstances indicates that Agent Oliver had a … Continue reading

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CA4: A Franks challenge requires an offer of proof, and it cannot be conclusory

A Franks challenge requires an offer of proof, and it cannot be conclusory. United States v. Shaw, 2024 U.S. App. LEXIS 22585 (4th Cir. Sep. 5, 2024):

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KS: Def’s general motion to suppress didn’t preserve particularity for appeal

“Huggins argued one reason for suppression at trial and hopes the language of his objection was sufficiently vague to preserve a different basis for appeal. This defeats the statutory requirement for specificity, and it leaves trial courts guessing what the … Continue reading

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CA4: Def’s failure to explain Franks claim means no abuse of discretion in denying motion to suppress

“[W]e agree with the district court that nothing in either motion justified a Franks hearing because, at bottom, Bordeaux did not explain the basis for his multiple assertions of falsity or make a sufficient showing that the officers acting knowingly … Continue reading

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CA3: Reframing issues outside of the original argument below requires plain error review

Fed. R. Crim. P. 12(c)(3)’s good-cause standard applied to defendant’s specific suppression arguments that were raised for the first time on appeal rather than plain error review under Fed. R. Crim. P. 52(b). Because defendant did not demonstrate good cause … Continue reading

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FL6: Officer does not have to decide potential defenses to a traffic stop before letting motorist go

“In similar fashion, the officer in our case did not need to first reach a state of ‘absolute certitude’ before forming a probable cause belief that careless driving had occurred. While there were numerous possibilities that could have presented a … Continue reading

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N.D.Ga.: Merely repeating the 4A argument to the USMJ isn’t a sufficient objection to the R&R

“Defendant does not explain how the Magistrate Judge erred in her consideration of this [Fourth Amendment] argument or explanation of the binding precedent that compelled her conclusion; he merely reiterates his prior argument on this issue. This is not a … Continue reading

Posted in Arrest or entry on arrest, Burden of pleading | Comments Off on N.D.Ga.: Merely repeating the 4A argument to the USMJ isn’t a sufficient objection to the R&R

CA10: Merely citing the 4A without explanation didn’t preserve the argument made on appeal

Plaintiff’s sole search claim that officers “in so doing unjustifiably trespassed on his Fourth Amendment right to privacy” did not put the district court on notice of his specific claim now asserted on appeal. United States v. Murillo-Gonzalez, 2024 U.S. … Continue reading

Posted in Burden of pleading, Waiver | Comments Off on CA10: Merely citing the 4A without explanation didn’t preserve the argument made on appeal

N.D.Ohio: When a stop is based on a law enforcement database, does reliability have to be shown? Here there was more

When a stop is based on a computerized law enforcement database, whether it has to be corroborated (see Gonzalez v. United States Immigration. & Customs Enf’t, 975 F.3d 788, 819 (9th Cir. 2020)) isn’t decided here because here there was … Continue reading

Posted in Burden of pleading, Burden of proof, Prison and jail searches, Reasonable suspicion, Waiver | Comments Off on N.D.Ohio: When a stop is based on a law enforcement database, does reliability have to be shown? Here there was more

D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ

The government having been turned down for a search warrant in the Central District of California for a cell phone of a prospective January 6th defendant, one alleged to be the third phone since then, for lack of showing likelihood … Continue reading

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OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea

The jail computer controlled phone system did not properly block attorney-client telephone calls, and the police listened to defense counsel’s conversations with defendant in jail. The police then used that information to supersede the indictment. Prejudice is presumed. State v. … Continue reading

Posted in Administrative search, Burden of pleading, Prison and jail searches, Privileges, Standing | Comments Off on OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea

AR: RS shown for boating while intoxicated stop

There was reasonable suspicion for stopping defendant on his jet ski because he was operating it unsafely. Damron v. State, 2024 Ark. App. 274 (Apr. 24, 2024).* Defendant has the initial burden of showing he was subjected to a warrantless … Continue reading

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CA9: Inventory of backpack before handing it to released defendant was reasonable and within policy

Defendant’s backpack was lawfully inventory searched by the police before returning it to him after he’d been released. They substantially complied with policy. United States v. Sapalasan, 2024 U.S. App. LEXIS 7580 (9th Cir. Apr. 1, 2024) (2-1). A motion … Continue reading

Posted in § 1983 / Bivens, Burden of pleading, Inventory | Comments Off on CA9: Inventory of backpack before handing it to released defendant was reasonable and within policy

CA8: Police placed a hidden camera across from def’s apt door and used information from it in showing PC for SW; there was PC without it

“Darron Mayo appeals the denial of his motion to suppress evidence obtained from a hidden camera police officers placed across from his apartment door. Officers used some of the evidence obtained from the camera in a probable cause affidavit supporting … Continue reading

Posted in Burden of pleading, Ineffective assistance, Pole cameras, Search incident | Comments Off on CA8: Police placed a hidden camera across from def’s apt door and used information from it in showing PC for SW; there was PC without it

OH1: Missing notary seal on SW affidavit not an error of constitutional magnitude, so no suppression

A search warrant isn’t void because the affidavit in support was missing a notary seal. The rest of the statutory requirements were satisfied, and this wasn’t an error of constitutional magnitude. State v. Whittle, 2024-Ohio-1023,2024 Ohio App. LEXIS 958 (1st … Continue reading

Posted in Burden of pleading, Privileges, Reasonable suspicion, Warrant papers | Comments Off on OH1: Missing notary seal on SW affidavit not an error of constitutional magnitude, so no suppression

MN: No REP in trash out for collection even if local ordinance prohibits people from going through trash

“A police search of garbage set out for collection does not violate the Fourth Amendment to the United States Constitution or article I, section 10 of the Minnesota Constitution even if a local municipal ordinance prohibits the inspection or removal … Continue reading

Posted in § 1983 / Bivens, Burden of pleading, Reasonable expectation of privacy | Comments Off on MN: No REP in trash out for collection even if local ordinance prohibits people from going through trash