Category Archives: Burden of pleading

D.Conn.: Def didn’t provide an affidavit of his standing, but his offer of proof and then actual proof showed it

Defendant claimed for trial that while he was a visitor at the premises searched under the warrant, he still had standing because he was a guest there and a paying tenant at times. He didn’t provide an affidavit, but he … Continue reading

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D.Conn.: Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis

Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis. United States v. Blake, 2018 U.S. Dist. LEXIS 141895 (D. Conn. Aug. 20, 2018). “Here, Rivarola does not explain what, if anything, further investigation by his prior … Continue reading

Posted in Burden of pleading, Cell site location information, Good faith exception, Ineffective assistance | Comments Off on D.Conn.: Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis

W.D.Ark.: When challenging SW, def has burden of pleading to attach the SW and affidavit to the motion to suppress

When challenging a search warrant, the defendant needs to attach the warrant and affidavit to the motion to suppress. The government did instead. Here, the search warrant wasn’t even needed because there was probable cause for a vehicle search under … Continue reading

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M.D.Tenn.: Def’s continual distancing himself in pleadings and at hearing from the cell phone at issue shows no standing

Defendant went to great lengths to distance himself from telephone 3 that was tracked in the suppression motion and hearing. Therefore, he has no standing to challenge the collection of CSLI on it. Carpenter and Byrd do not, as defendant … Continue reading

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KS: Pleading facts doesn’t plead specific 4A claims; this specific claim is waived for lack of development below

Defendant’s argument in the district court was that the package was subjected to detention without reasonable suspicion, and he did not argue that the package was detained too long. His statement of facts isn’t enough for the court to have … Continue reading

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PA: Trial court’s deciding to suppress based on an argument not made by def was error

Trial court’s deciding to suppress based on an argument not made by defendant was error. Commonwealth v. Jones, 2018 PA Super 208, 2018 Pa. Super. LEXIS 815 (July 17, 2018). Defendant argues in post-conviction proceedings against the trial court’s ruling … Continue reading

Posted in Burden of pleading, Ineffective assistance, Nexus | Comments Off on PA: Trial court’s deciding to suppress based on an argument not made by def was error

CA3: Def’s trespass argument of using key to find door was interesting, but waived

Defendant raises an interesting argument, but it’s raised for the first time on appeal and thus waived: “Wheeler next argues that under the trespass theory of the Fourth Amendment articulated in United States v. Jones, 565 U.S. 400 (2012) and … Continue reading

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W.D.Mo.: Unaccounted for gun and likely presence of another inside was exigency for entry to look for it

Defendant was arrested outside his house, and a firearm expected to be on him was not found during his search incident. There was expected to be another person in the house, and that, coupled with the unaccounted for gun, was … Continue reading

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CA7: “This is a hornbook example of how to waive an argument on appeal.”

“This is a hornbook example of how to waive an argument on appeal.” The search issue presented on appeal was never presented to the trial court. “[P]arties cannot conjure up brand new legal theories on appeal like this. Failing to … Continue reading

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CA9: Claim that SW was defective on face wasn’t preserved in district court

The specific argument the search warrant was defective on its face wasn’t encompassed within the motion to suppress, so it’s waived for appeal. United States v. Robinson, 2018 U.S. App. LEXIS 14097 (9th Cir. May 29, 2018). The basis of … Continue reading

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OR: Def adequately pled 4A and argued substance to preserve issue for appeal

Defendant preserved her Fourth Amendment claim by citing it in the motion and by arguing at the hearing the stop was impermissibly extended. “Although the question is close, we agree with defendant that her Fourth Amendment argument is adequately preserved … Continue reading

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CA10: A verbal judicial order to enter a house to take a child into custody is the equivalent of a warrant

A verbal judicial order to enter a house to take a child into custody is the equivalent of a warrant. Duran v. Muse, 2018 U.S. App. LEXIS 11481 (10th Cir. May 3, 2018). Motion to suppress was untimely and denied … Continue reading

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