Category Archives: Burden of pleading

DE: IAC 4A claim requires alleging then showing that the motion to suppress not pursued would have been granted

Defendant wanted to plead guilty in his drug case at the first appearance, and defense counsel persuaded him to wait until discovery was complete. Defendant then wanted to plead, but later he claimed that defense counsel failed to consider all … Continue reading

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MD: Def agreed to postpone suppression hearing until trial and then didn’t bring it up; invited error and not preserved

Defendant failed to preserve his Fourth Amendment claims for appeal. You don’t get a hearing just by asking. He didn’t make a proffer in his Franks motion which was enough to deny it. Then, whatever issue was left, the defense … Continue reading

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CO: Pre-Riley cell phone search incident not saved by GFE because no prior case on point

Defendant’s cell phone was subjected to a pre-Riley search incident. Defendant preserved the issue, and now he prevails. The state’s reliance on Davis good faith exception fails because the case the state relies on to support good faith reliance on … Continue reading

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DE: Conclusory motion to suppress summarily denied

Defendant’s conclusory motion to suppress that states no law or fact is denied without a hearing. State v. Dunson, 2017 Del. Super. LEXIS 616 (July 7, 2017):

Posted in Burden of pleading, Motion to suppress | Comments Off

E.D.Mich.: Rule 41(g) motion denied for failure to show entitlement to seized property

For Rule 41(g) motion to return property: “Flemming has failed to prove that he is a ‘person aggrieved by an unlawful search and seizure.’ In his motion, Flemming does not challenge the legality of the search and seizure in question. … Continue reading

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AZ: State didn’t argue GFE and court gives it a pass

The state didn’t raise the good faith exception in the trial court, but the court applies the “we can affirm on any ground” rule to apply it anyway. State v. Weakland, 2017 Ariz. App. LEXIS 202 (Nov. 28, 2017):

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OR: State has burden of pleading and proof on attenuation, and here it failed

The state had the burden and failed to prove attenuation between the stop and unreasonable search and finding the evidence. It did not raise the issue to preserve it. [This was submitted 33 months ago after remand from Oregon Supreme … Continue reading

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D.Minn.: Govt pinned its vehicle search on lack of standing and lost, so vehicle search suppressed; house search, however, shown to be by consent

Even though somebody else owned the van, defendant was a regular user and that gave him standing. At the time of the seizure, it had broken down, and he used it then for storage. The government failed to show any … Continue reading

Posted in Burden of pleading, Burden of proof, Standing | Comments Off

IA: Dad can’t raise son’s rights when son was arrested and gave dad up as his source of drugs

Defendant’s juvenile son was selling from his dad’s stash. After the son’s arrest, he gave up his source. Defendant can’t raise violations of his son’s Fourth and Fifth Amendment or statutory rights as a juvenile to challenge the probable cause … Continue reading

Posted in Arrest or entry on arrest, Burden of pleading, Burden of proof, Standing | Comments Off

OR: Def’s motion to suppress that he was subjected to an “unlawful warrantless arrest” sufficiently put the state on notice that it had to show PC

Defendant was walking four blocks from the area of a disturbance talking on a cell phone. When officers confronted him and commanded he stop, he “bladed up” and reached for a back pocket, making the officers fear he was armed. … Continue reading

Posted in Arrest or entry on arrest, Burden of pleading, Reasonable suspicion | Comments Off

D.Nev.: Court gave a Franks hearing, but def didn’t make offer of proof to get one and failed on proof

Defendant got a suppression hearing to put on proof of a Franks violation, and he fails to show with any proof that the statements were reckless or material. Perhaps the court should have never ordered a hearing for a lack … Continue reading

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OH2: No record of suppression hearing brought up means no appellate review

The trial court’s denial of the motion to suppress couldn’t be considered on appeal because the record of the hearing was never filed for the appeal. State v. Tscheiner, 2017-Ohio-7641, 2017 Ohio App. LEXIS 3962 (2d Dist. Sept. 15, 2017). … Continue reading

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