Category Archives: Burden of pleading

E.D.Wis.: No REP as to pole camera surveillance, one in an apt building hallway

Two surveillance cameras were installed; one on a pole, one in a hallway of an apartment building. Defendant, a visitor, had no reasonable expectation of privacy. A codefendant already litigated this motion and lost, and he should have acknowledged the … Continue reading

Posted in Burden of pleading, Ineffective assistance, Pole cameras | Comments Off on E.D.Wis.: No REP as to pole camera surveillance, one in an apt building hallway

D.V.I.: Failure to put on proof at suppression hearing leads to show cause order to defense

Defendant filed a motion to suppress a statement and a search. At the hearing, however, the search wasn’t challenged. Defendant has to show cause why that part of the motion should not be denied. United States v. Henry, 2021 U.S. … Continue reading

Posted in Burden of pleading, Burden of proof, Informant hearsay, Seizure | Comments Off on D.V.I.: Failure to put on proof at suppression hearing leads to show cause order to defense

N.D.Ind.: Ptf’s 4A claim wasn’t sufficiently articulated to state a claim

“Mr. Ryan also alleges that there wasn’t any ‘adversarial pursuit of the Fourth Amendment’s protection of privacy can not be invalidated simply because a person’s right to want to be private evidences unlawful activity because the person does not want … Continue reading

Posted in § 1983 / Bivens, Burden of pleading, Reasonable suspicion | Comments Off on N.D.Ind.: Ptf’s 4A claim wasn’t sufficiently articulated to state a claim

N.D.Ind.: Franks challenge in PC clothing fails for no offer of proof

“At first glance, the Defendant’s motion does not appear to be a true Franks hearing request as it does not appear to contest the veracity of the statements of the affiant or assert that she made false allegations. Rather, it … Continue reading

Posted in Burden of pleading, Franks doctrine | Comments Off on N.D.Ind.: Franks challenge in PC clothing fails for no offer of proof

CA6: Def waived Franks argument on appeal by only arguing PC below

Defendant’s Franks argument on appeal fails because the motion to suppress was based on a lack of probable cause and didn’t direct the court to any alleged false statement under Franks. United States v. Baker, 2021 U.S. App. LEXIS 113 … Continue reading

Posted in Burden of pleading, Burden of proof, Franks doctrine, Waiver | Comments Off on CA6: Def waived Franks argument on appeal by only arguing PC below

W.D.N.C.: Indian tribes not subject to 4A claims

“Plaintiff cannot bring a claim based on a Fourth or Fourteenth Amendment violation against an Indian tribe like the Defendant. Oviatt v. Reynolds, 733 F. App’x 929, 933 (10th Cir. 2018) (dismissing Fourth Amendment claim against an Indian tribe ‘because … Continue reading

Posted in Burden of pleading, Burden of proof | Comments Off on W.D.N.C.: Indian tribes not subject to 4A claims

MA: SnapChat video of def with a firearm two days before SW was PC

A SnapChat video of defendant with a gun two days earlier was probable cause for a search warrant. Commonwealth v. Watkins, 2020 Mass. App. LEXIS 139 (Sept. 16, 2020). “Plaintiffs’ Amended Complaint asserts a Fourth Amendment claim for unreasonable search … Continue reading

Posted in Burden of pleading, Probable cause, Staleness | Comments Off on MA: SnapChat video of def with a firearm two days before SW was PC

CA11: Govt waives abandonment by not pleading it in the district court

Government waives abandonment by not pleading it in the district court. United States v. Ross, 2020 U.S. App. LEXIS 21028 (11th Cir. July 7, 2020), on remand from United States v. Ross, 2020 U.S. App. LEXIS 19642 (11th Cir. June … Continue reading

Posted in Abandonment, Burden of pleading, Ineffective assistance | Comments Off on CA11: Govt waives abandonment by not pleading it in the district court

W.D.Tex.: State officer’s alleged 4A violation doesn’t permit removal of criminal case to federal court

Defendants removed their state criminal cases to federal court under 28 U.S.C. § 1443 based on claimed search and seizure issues. This isn’t a proper ground to remove, and they have a state law remedy. Texas v. Calzada, 2020 U.S. … Continue reading

Posted in Abstention, Burden of pleading, Standing | Comments Off on W.D.Tex.: State officer’s alleged 4A violation doesn’t permit removal of criminal case to federal court

IL: Arguing only lack of arrest warrant waives lack of PC

Pleading and litigating a motion to suppress in the trial court that the officers lacked an arrest warrant or an exception waived his appellate claim of a lack of probable cause. People v. Montes, 2020 IL App (2d) 180565, 2020 … Continue reading

Posted in Burden of pleading, Burden of proof, Informant hearsay | Comments Off on IL: Arguing only lack of arrest warrant waives lack of PC

NJ: No REP in text messages in recipient’s cell phone

There is no reasonable expectation of privacy in text messages in the receiving cell phone. The court also discusses the third party doctrine as to private persons. State v. Armstrong, 2020 N.J. Super. LEXIS 86 (June 2, 2020). Defendant’s conclusory … Continue reading

Posted in Burden of pleading, Reasonable expectation of privacy | Comments Off on NJ: No REP in text messages in recipient’s cell phone

OH9: Def’s motion to suppress should not have been granted for his failure to plead a violation of the constitution or law

Defendant’s motion to suppress should not have been granted for his failure to plead a violation of the constitution or law. State v. Leatherwood, 2020-Ohio-3012, 2020 Ohio App. LEXIS 1956 (9th Dist. May 20, 2020):

Posted in Burden of pleading | Comments Off on OH9: Def’s motion to suppress should not have been granted for his failure to plead a violation of the constitution or law

W.D.Wash.: A filter team is required for execution of an allegedly overbroad SW

A filter team isn’t required just because a Facebook account search warrant is alleged to be overbroad. United States v. Sam, 2020 U.S. Dist. LEXIS 79023 (W.D. Wash. May 5, 2020). Hearsay in a search warrant isn’t less believable solely … Continue reading

Posted in Admissibility of evidence, Burden of pleading, Overbreadth, Warrant execution | Comments Off on W.D.Wash.: A filter team is required for execution of an allegedly overbroad SW

D.Minn.: Desire to file a Franks motion doesn’t expand discovery rights

“Generally, the fact that a defendant wishes to seek a Franks hearing ‘does not entitle him or her to additional discovery before the Franks hearing.’” The government stated it has provided discovery required by Rule 16. Defendant’s request for further … Continue reading

Posted in Burden of pleading, Burden of proof, Prison and jail searches | Comments Off on D.Minn.: Desire to file a Franks motion doesn’t expand discovery rights

N.D.Ind.: Merely saying in a motion to suppress def was arrested without probable cause doesn’t state grounds

Defendant does not offer further context or analysis. Based upon his failure to fully address this issue, the Defendant’s argument regarding an alleged illegal search and seizure is denied without prejudice. See United States v. Collins, 796 F.3d 829, 836 … Continue reading

Posted in Burden of pleading, Franks doctrine | Comments Off on N.D.Ind.: Merely saying in a motion to suppress def was arrested without probable cause doesn’t state grounds

OH9: Pro se 4A argument never presented to trial court not considered

Pro se argument that the search warrant was invalid wasn’t preserved by a motion to suppress in the trial court. State v. Daniels, 2020-Ohio-1176, 2020 Ohio App. LEXIS 1097 (9th Dist. Mar. 30, 2020).* Plaintiff’s Fourth Amendment claim (among others) … Continue reading

Posted in Burden of pleading, Standards of review | Comments Off on OH9: Pro se 4A argument never presented to trial court not considered

CA2: Barring cross-examination on execution of SW on cell phone wasn’t shown to be prejudicial

The district court didn’t err in sustaining the government’s objection to cross-examination about the execution of the search warrant on defendant’s cell phone because there was no showing that the warrant wasn’t improperly executed. United States v. Vargas, 2020 U.S. … Continue reading

Posted in Burden of pleading, Warrant execution | Comments Off on CA2: Barring cross-examination on execution of SW on cell phone wasn’t shown to be prejudicial

D.Nev.: Affidavit for SW for DNA showed PC by parallels between two crimes and def

“The underlying facts in the affidavit compare the actions of Tualua with the actions of the people who committed the prior EZ Pawn robberies, which would allow the issuing judge to make his or her own conclusions. Under the totality … Continue reading

Posted in Burden of pleading, DNA | Comments Off on D.Nev.: Affidavit for SW for DNA showed PC by parallels between two crimes and def

CA9: Motion to suppress tax records obtained by IRS because his “private property interests” were invaded wasn’t presented below and is waived

“Galloway next argues that the district court erred in denying his motion to suppress because the IRS’s warrantless inspection of his financial records violated his private-property interests under the Fourth Amendment. But Galloway ‘never requested suppression on this ground in … Continue reading

Posted in Burden of pleading, Qualified immunity | Comments Off on CA9: Motion to suppress tax records obtained by IRS because his “private property interests” were invaded wasn’t presented below and is waived

Cal.: Mid-trial objection to question based on lack of PC for search was untimely objection to the search

A mid-trial objection to evidence on the ground there was no probable cause for the police action in the search was untimely. It can only be brought during trial if the facts weren’t known until then, and that’s not what … Continue reading

Posted in Burden of pleading, Motion to suppress, Probation / Parole search | Comments Off on Cal.: Mid-trial objection to question based on lack of PC for search was untimely objection to the search