Category Archives: Burden of pleading

NY: Denial of ownership of a key fob found under def at his arrest is abandonment of the car

Defendant could be detained during the search of his house under a warrant. When he got up off the floor, there was a key fob underneath him, and he denied it was his. The officers used the panic button to … Continue reading

Posted in Abandonment, Attenuation, Burden of pleading, Standing | Comments Off on NY: Denial of ownership of a key fob found under def at his arrest is abandonment of the car

OH1: Blood draw from unconscious driver is by consent and reasonable

“Under [Ohio statute] an unconscious driver is deemed to have consented to a blood draw,” and that doesn’t violate the Fourth Amendment. State v. Albright, 2021-Ohio-292, 2021 Ohio App. LEXIS 301 (1st Dist. Feb. 3, 2021).* 2255 petitioner’s Fourth Amendment … Continue reading

Posted in § 1983 / Bivens, Body searches, Burden of pleading, Drug or alcohol testing | Comments Off on OH1: Blood draw from unconscious driver is by consent and reasonable

AR: Reasonableness of a probation search has to be presented to revocation court first

Defendant didn’t argue in the revocation court that the probation search was unreasonable, so it can’t be argued on appeal. Mathis v. State, 2021 Ark. App. 49, 2021 Ark. App. LEXIS 57 (Feb. 3, 2021). Defendant was on release and … Continue reading

Posted in Automobile exception, Burden of pleading, Burden of proof, Probation / Parole search, Standards of review | Comments Off on AR: Reasonableness of a probation search has to be presented to revocation court first

CA9: ICE warrant authorized knocking at appellant’s door, and co-occupant consented to entry

ICE officers could approach appellant’s door under Jardines with an immigration arrest warrant even though it is not a judicial warrant. “The immigration warrant licensed the officers to solicit consent to entry for the limited purpose of enforcing the civil … Continue reading

Posted in Burden of pleading, Immigration arrests, Qualified immunity | Comments Off on CA9: ICE warrant authorized knocking at appellant’s door, and co-occupant consented to entry

CA1: Defense must argue cost v. benefits of exclusionary rule or issue is likely waived

When invoking the exclusionary rule, the defendant necessarily has to show that the deterrence value of exclusion outweighs the costs of exclusion. United States v. Cruz-Ramos, 2021 U.S. App. LEXIS 2284 (1st Cir. Jan. 27, 2021), n. 9:

Posted in Burden of pleading, Good faith exception, Standards of review | Comments Off on CA1: Defense must argue cost v. benefits of exclusionary rule or issue is likely waived

E.D.Wis.: No REP as to pole camera surveillance, one in an apt building hallway

Two surveillance cameras were installed; one on a pole, one in a hallway of an apartment building. Defendant, a visitor, had no reasonable expectation of privacy. A codefendant already litigated this motion and lost, and he should have acknowledged the … Continue reading

Posted in Burden of pleading, Ineffective assistance, Pole cameras | Comments Off on E.D.Wis.: No REP as to pole camera surveillance, one in an apt building hallway

D.V.I.: Failure to put on proof at suppression hearing leads to show cause order to defense

Defendant filed a motion to suppress a statement and a search. At the hearing, however, the search wasn’t challenged. Defendant has to show cause why that part of the motion should not be denied. United States v. Henry, 2021 U.S. … Continue reading

Posted in Burden of pleading, Burden of proof, Informant hearsay, Seizure | Comments Off on D.V.I.: Failure to put on proof at suppression hearing leads to show cause order to defense

N.D.Ind.: Ptf’s 4A claim wasn’t sufficiently articulated to state a claim

“Mr. Ryan also alleges that there wasn’t any ‘adversarial pursuit of the Fourth Amendment’s protection of privacy can not be invalidated simply because a person’s right to want to be private evidences unlawful activity because the person does not want … Continue reading

Posted in § 1983 / Bivens, Burden of pleading, Reasonable suspicion | Comments Off on N.D.Ind.: Ptf’s 4A claim wasn’t sufficiently articulated to state a claim

N.D.Ind.: Franks challenge in PC clothing fails for no offer of proof

“At first glance, the Defendant’s motion does not appear to be a true Franks hearing request as it does not appear to contest the veracity of the statements of the affiant or assert that she made false allegations. Rather, it … Continue reading

Posted in Burden of pleading, Franks doctrine | Comments Off on N.D.Ind.: Franks challenge in PC clothing fails for no offer of proof

CA6: Def waived Franks argument on appeal by only arguing PC below

Defendant’s Franks argument on appeal fails because the motion to suppress was based on a lack of probable cause and didn’t direct the court to any alleged false statement under Franks. United States v. Baker, 2021 U.S. App. LEXIS 113 … Continue reading

Posted in Burden of pleading, Burden of proof, Franks doctrine, Waiver | Comments Off on CA6: Def waived Franks argument on appeal by only arguing PC below

W.D.N.C.: Indian tribes not subject to 4A claims

“Plaintiff cannot bring a claim based on a Fourth or Fourteenth Amendment violation against an Indian tribe like the Defendant. Oviatt v. Reynolds, 733 F. App’x 929, 933 (10th Cir. 2018) (dismissing Fourth Amendment claim against an Indian tribe ‘because … Continue reading

Posted in Burden of pleading, Burden of proof | Comments Off on W.D.N.C.: Indian tribes not subject to 4A claims

MA: SnapChat video of def with a firearm two days before SW was PC

A SnapChat video of defendant with a gun two days earlier was probable cause for a search warrant. Commonwealth v. Watkins, 2020 Mass. App. LEXIS 139 (Sept. 16, 2020). “Plaintiffs’ Amended Complaint asserts a Fourth Amendment claim for unreasonable search … Continue reading

Posted in Burden of pleading, Probable cause, Staleness | Comments Off on MA: SnapChat video of def with a firearm two days before SW was PC

CA11: Govt waives abandonment by not pleading it in the district court

Government waives abandonment by not pleading it in the district court. United States v. Ross, 2020 U.S. App. LEXIS 21028 (11th Cir. July 7, 2020), on remand from United States v. Ross, 2020 U.S. App. LEXIS 19642 (11th Cir. June … Continue reading

Posted in Abandonment, Burden of pleading, Ineffective assistance | Comments Off on CA11: Govt waives abandonment by not pleading it in the district court

W.D.Tex.: State officer’s alleged 4A violation doesn’t permit removal of criminal case to federal court

Defendants removed their state criminal cases to federal court under 28 U.S.C. § 1443 based on claimed search and seizure issues. This isn’t a proper ground to remove, and they have a state law remedy. Texas v. Calzada, 2020 U.S. … Continue reading

Posted in Abstention, Burden of pleading, Standing | Comments Off on W.D.Tex.: State officer’s alleged 4A violation doesn’t permit removal of criminal case to federal court

IL: Arguing only lack of arrest warrant waives lack of PC

Pleading and litigating a motion to suppress in the trial court that the officers lacked an arrest warrant or an exception waived his appellate claim of a lack of probable cause. People v. Montes, 2020 IL App (2d) 180565, 2020 … Continue reading

Posted in Burden of pleading, Burden of proof, Informant hearsay | Comments Off on IL: Arguing only lack of arrest warrant waives lack of PC

NJ: No REP in text messages in recipient’s cell phone

There is no reasonable expectation of privacy in text messages in the receiving cell phone. The court also discusses the third party doctrine as to private persons. State v. Armstrong, 2020 N.J. Super. LEXIS 86 (June 2, 2020). Defendant’s conclusory … Continue reading

Posted in Burden of pleading, Reasonable expectation of privacy | Comments Off on NJ: No REP in text messages in recipient’s cell phone