Category Archives: Burden of pleading

OH1: Automobile exception does not apply to a purse removed from vehicle before PC developed

“In this appeal, we are asked to consider the narrow application of the automobile exception to the Fourth Amendment’s warrant requirement: whether officers may, in the course of a car search, search a container held roughly 25 feet away from … Continue reading

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TN: Collective knowledge also applies to RS

Collective knowledge also applies to reasonable suspicion. State v. Hodge, 2023 Tenn. Crim. App. LEXIS 317 (Aug. 24, 2023). Defendant’s “certified question” for appeal was overbroad. State v. Beech, 2023 Tenn. Crim. App. LEXIS 313 (Aug. 24, 2023).* Defendant was … Continue reading

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D.Ariz.: No REP in shared folder on computer open on eMule program

The government’s “pre-search” of a shared folder on defendant’s computer available through eMule was not subject to a reasonable expectation of privacy and was reasonable. United States v. Johnson, 2023 U.S. Dist. LEXIS 146664 (D. Ariz. Aug. 21, 2023), adopting … Continue reading

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D.S.D. & OH5: When challenging another court’s SW, it has to be filed with the papers for the court to rule

Defendant challenges the tribal search warrant as lacking probable cause and being vindictively obtained, the latter of which does not exist under Rule 41. He fails to include the warrant papers so the court can’t rule. United States v. Floyd, … Continue reading

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D.D.C.: Second thoughts about unobjected to Facebook posts in 1/6 trial doesn’t mean govt violated particularity

1/6 defendants didn’t object to Facebook materials obtained by search warrant. In their motion for new trial they’re concerned with one entry in 14,000 pages that the government must have exceeded the warrant. “Even if these underdeveloped allegations held water, … Continue reading

Posted in Burden of pleading, Particularity, Reasonable suspicion, Waiver | Comments Off on D.D.C.: Second thoughts about unobjected to Facebook posts in 1/6 trial doesn’t mean govt violated particularity

OH5: Pickup of visitor parked on street could be searched with SW for premises where it was suspected of drug transactions there

Defendant’s pickup was parked on the street in front of another man’s house that was searched with a warrant. His truck was searched too, but wasn’t mentioned in the warrant. “We find the search of the truck was authorized by … Continue reading

Posted in Burden of pleading, Burden of proof, Probation / Parole search, Scope of search, Standing, Warrant execution | Comments Off on OH5: Pickup of visitor parked on street could be searched with SW for premises where it was suspected of drug transactions there

CA7: The remedy for an overbroad SW is a motion to suppress, not a motion to dismiss

An alleged overbroad email search warrant is pursued by a motion to suppress, not a motion to dismiss. “The remedy for such Fourth Amendment violations in a criminal proceeding is suppression of the evidence, not dismissal of the indictment or … Continue reading

Posted in Burden of pleading, Exclusionary rule, Motion to suppress | Comments Off on CA7: The remedy for an overbroad SW is a motion to suppress, not a motion to dismiss

CA2: GFE applies to particularity of SWs too

The good faith exception applies to particularity questions where the officer cannot reasonably be expected to question the scope of the warrant. United States v. Walker, 2023 U.S. App. LEXIS 11798 (2d Cir. May 15, 2023). “Given that a police … Continue reading

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SD: Def not in custody during DNA SW when asked basic questions

Despite language difficulties, defendant did speak some English, enough to refer to erection difficulties, and he never indicated he didn’t understand. He was not in custody for Miranda purposes when he was asked some basic questions and volunteered information while … Continue reading

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MN: Purse in car could be searched under automobile exception

The warrantless search of defendant’s purse was lawful under the automobile exception because there was probable cause to believe that the car contained a controlled substance, and the purse was a container within that car. State v. Barrow, 2023 Minn. … Continue reading

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OH3: Def’s motion to determine legality of arrest never sought to suppress anything and wasn’t appealable

Defendant’s motion to determine the legality of his arrest was not even called a motion to suppress. It was not even appealable as it was framed. “[T]he motion filed by Sanchez on October 28, 2020, was not captioned a ‘motion … Continue reading

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OH12: Fact LEO broke traffic laws to catch speeder isn’t a 4A reasonableness defense

The fact a police officer arguably broke traffic laws to effect a stop of a fleeing motorist isn’t a defense to a traffic stop under the Fourth Amendment or the state constitution. State v. Johnson, 2023-Ohio-1320, 2023 Ohio App. LEXIS … Continue reading

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C.D.Cal.: Mere seizure of a firearm not per se a 2A violation

“‘The mere occurrence of a firearm seizure during a traffic stop, however, is not enough to establish a Second Amendment violation. Police seize and confiscate firearms routinely, and this Court will not presume that each and every one of those … Continue reading

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AR: Failure to argue against GFE below bars argument on appeal

Failure to challenge application of the good faith exception in the trial court on running the LPN through insurance database precludes challenging it on appeal. Erby v. State, 2023 Ark. App. 220, 2023 Ark. App. LEXIS 211 (April 12, 2023). … Continue reading

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OH5: Admission of MJ but no MMJ card was PC

Admission there was marijuana in the car and nobody had a MMJ card was probable cause. State v. Hale, 2023-Ohio-1057, 2023 Ohio App. LEXIS 1025 (5th Dist. Mar. 30, 2023). A conclusory allegation that false information in an affidavit for … Continue reading

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WA: Stop to inquire of paying transit fare violated state constitution

Defendant’s freedom under the state constitution to not be interfered with in his private affairs was violated by a stop and inquiry whether he had paid a transit fare. He provided a false name that led to his prosecution for … Continue reading

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Cal.4: Without specific argument, court won’t look to SW and affidavit to make it for the appellant

Without specific argument, the court of appeals will not scour the record and the search warrant affidavit to make a party’s argument for him. Billauer v. Escobar-Eck, 2023 Cal. App. LEXIS 144 (4th Dist. Feb. 28, 2023) (anti-SLAPP case; not … Continue reading

Posted in Administrative search, Burden of pleading, Cell site location information, Good faith exception | Comments Off on Cal.4: Without specific argument, court won’t look to SW and affidavit to make it for the appellant

S.D.Ill.: When moving to suppress “data” one has to be specific

Defendant’s motion to suppress “data” and “associated data” fails because of his failure to show what and where it was or could be. (It kind of becomes a general motion to suppress.) United States v. Smith, 2023 U.S. Dist. LEXIS … Continue reading

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AR: Claim state’s response to motion to suppress was judicial admission has to be presented to trial court

To argue that the state’s admissions in a response to a motion to suppress amount to a judicial admission of fact, the issue has to be argued to the trial court to preserve it. Otherwise, the trial court is free … Continue reading

Posted in Admissibility of evidence, Burden of pleading, DNA, Exclusionary rule, Waiver | Comments Off on AR: Claim state’s response to motion to suppress was judicial admission has to be presented to trial court

IA: State failure to object to lack of Franks preliminary showing results in hearing, but def fails anyway

Defendant got a Franks hearing without an adequate showing, and the state didn’t object. So the court of appeals considers the showing at the hearing over the state’s objection, and defendant fails to show recklessness or intentional false statement or … Continue reading

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