Category Archives: Burden of pleading

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

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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

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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

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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

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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

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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

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D.Minn.: Regular CI had “extensive knowledge of street gangs, firearms, and narcotics distribution”; there was PC

The CI had “extensive knowledge of street gangs, firearms, and narcotics distribution,” and he’d been providing information for three months. The officers corroborated what they could. What little omissions there were in the affidavit weren’t material to the finding of … Continue reading

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D.R.I.: SW affidavit that failed to incorporate what it said it was failed to show PC and thus no GFE

The affidavit for warrant was supposed to incorporate by attaching other stuff. The officer swore to it, but the stuff wasn’t there. The good faith exception is denied because it remained bare bones. United States v. Medina, 2024 U.S. Dist. … Continue reading

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CA7: Rodriguez time argument waived by failure to specifically plead it below

“At the outset, we note that Johnson did not challenge the length or validity of the dog sniff in the district court. The record therefore does not contain information crucial to the Rodriguez inquiry, such as whether Deputy Haber acted … Continue reading

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N.D.Ohio: Drug lab results from controlled buy not required for PC

The government had probable cause for the search warrant for defendant’s house despite the fact that the drugs previously bought from him hadn’t come back from testing at the crime lab. United States v. Clark, 2024 U.S. Dist. LEXIS 24651 … Continue reading

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CA9: Questions about supervised release status and request for consent during traffic stop are reasonable

This traffic stop was not unreasonably extended. “Officers were permitted to ask Contreras about his supervisory release status as an ordinary inquiry incident to a traffic stop. … Officers were also allowed to conduct a criminal records search. … Likewise, … Continue reading

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D.S.D.: Def’s lies to police during arrest completely undermines his credibility in a pro se Franks challenge

Defendant pro se makes allegations of a Franks violation but nothing substantive is offered for the “substantial preliminary showing.” Moreover, because he lied to the officers during his arrest, the court finds him without credibility. United States v. Ward, 2023 … Continue reading

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CA5: Circuit authority can be “clearly established law” for qualified immunity

Circuit authority can be “clearly established law” for qualified immunity. “On the well-pleaded facts of this case, Walls was not suspected of any crime, posed no immediate threat to the safety of the deputies or others, and made no attempt … Continue reading

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DE: Mandamus can’t be used as interlocutory appeal of denial of motion to suppress

A petition for writ of mandamus can’t be used as an interlocutory appeal of denial of a motion to suppress. [Mandamus isn’t anywhere near a possible remedy.] In re Taylor for A Writ of Mandamus, 2023 Del. LEXIS 400 (Dec. … Continue reading

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OH11: Person seeking return of property seized need not provide actual evidence in the petition

In a petition for return of property seized from a business, it was only required to show a possessory interest and likelihood of return. An evidentiary quality response isn’t required. State v. Allen, 2023-Ohio-4032, 2023 Ohio App. LEXIS 3869 (11th … Continue reading

Posted in Burden of pleading, Cell phones, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on OH11: Person seeking return of property seized need not provide actual evidence in the petition

IN: State could rely on alternative theory on appeal where record supports it

The state relied on inventory at trial and prevailed. On appeal it also relies on search incident. The record developed supports that, too. Cobb v. State, 2023 Ind. App. LEXIS 299 (Oct. 26, 2023). [In my state, it’s “right result, … Continue reading

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D.N.M.: Police entry into a fire damaged home after fire was out and it was “all clear” violated 4A

There was a kitchen fire in defendant’s home, and firefighters told the police that there were unsecured handguns in the house. A police aide entered the house without a warrant and took them. The government argues the house was abandoned … Continue reading

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OR: State const. doesn’t bar checking for warrants during traffic stop

Officers are not prohibited under the state constitution from checking for outstanding warrants during a traffic stop, during a lull or not. There are valid safety and policy reasons for it. State v. Civil, 328 Or App 662, 2023 Ore. … Continue reading

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