Category Archives: Burden of pleading

PA & CA2: Approaching def to talk to him about what’s in his bag was not a seizure

“Consistent with this precedent, we find the officers did not subject Appellant to a seizure when they approached him in a public place and asked him what was inside his bag. The interaction remained a mere encounter as the officers … Continue reading

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TX14: Argument that arrest violated 4A wasn’t specific enough to preserve lack of PC

Arguing that one’s arrest violated the Fourth Amendment didn’t preserve his lack of probable cause claim on appeal. Doremus v. State, 2017 Tex. App. LEXIS 7702 (Tex. App. – Houston (14th Dist.) Aug. 15, 2017). The affidavits in support of … Continue reading

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CA5: Ptf in a 4A § 1983 case has to plead violation of a “clearly established right” to get over QI in complaint

Although an arrestee adequately alleged that members of a parish council and sheriff’s office maliciously conspired to prosecute him under an unconstitutional statute in retaliation for online comments about council members, his right was not clearly established because there was … Continue reading

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OH2: Particularity and scope of search have to be raised and litigated to preserve for review

Claims of particularity and scope of search have to be raised and litigated in the trial court to appeal them. State v. Terrell, 2017-Ohio-7097, 2017 Ohio App. LEXIS 3224 (2d Dist. Aug. 4, 2017). Tossing a gun in flight from … Continue reading

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OH6: Stop and arrest outside officer’s territorial jurisdiction does not violate state constitution

The officer knew he was outside his territorial jurisdiction when he made a stop of a suspect DUI, but this doesn’t violate the Ohio Constitution. State v. Curran, 2017-Ohio-7008, 2017 Ohio App. LEXIS 3130 (6th Dist. July 28, 2017). Lack … Continue reading

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OR: Three on preservation of search issues at the suppression hearing

Defendant preserved his argument that officer safety was not a valid justification in his memorandum of law, and that put the state and the trial court on notice that was an issue the state had to address, and didn’t. State … Continue reading

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Cal: In administrative review, a 4A claim has to be raised before the agency first

Petitioner is a doctor who was accused of controlled substance prescription violations of the medical practices act. His claim under the California privacy provision fails because of the countervailing interests of the state in protecting against incompetent or negligent doctors. … Continue reading

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OH2: Motion to suppress was vague and def didn’t clarify at hearing; appeal argument waived

The motion to suppress was vague, and defendant got a hearing. When the prosecutor complained about the vagueness and what the issues were, defense counsel didn’t elaborate. On appeal, the issues were more focused. The court of appeals takes this … Continue reading

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CA7: Plaintiff’s 4A claim was too generalized to state a claim

In a bankruptcy appeal, the plaintiff’s Fourth Amendment claim was too generalized to state a claim. Home Care Providers v. Hemmelgarn, 2017 U.S. App. LEXIS 11412 (7th Cir. June 27, 2017):

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E.D.Cal.: Def satisfies Franks burden to get a hearing because nexus in affidavit for SW is weak

Defendant satisfies the Franks preliminary showing of false or misleading statements about alleged victims to get a Franks hearing. The nexus requirement of the affidavit is just barely met, and the hearing could undermine the probable cause showing. United States … Continue reading

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