Category Archives: Burden of pleading

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

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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

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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

Posted in Burden of pleading, Community caretaking function | Comments Off

OH: Def has no standing in place of another that he was arrested in, so Steagald provides him no relief

Defendant could not show he had a reasonable expectation of privacy in the premises of a third person, although he was the person being looked for. The court discusses Steagald and the Ninth Circuit’s en banc Underwood (1983, Treatise §§ … Continue reading

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

PA & CA2: Approaching def to talk to him about what’s in his bag was not a seizure

“Consistent with this precedent, we find the officers did not subject Appellant to a seizure when they approached him in a public place and asked him what was inside his bag. The interaction remained a mere encounter as the officers … Continue reading

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TX14: Argument that arrest violated 4A wasn’t specific enough to preserve lack of PC

Arguing that one’s arrest violated the Fourth Amendment didn’t preserve his lack of probable cause claim on appeal. Doremus v. State, 2017 Tex. App. LEXIS 7702 (Tex. App. – Houston (14th Dist.) Aug. 15, 2017). The affidavits in support of … Continue reading

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

CA5: Ptf in a 4A § 1983 case has to plead violation of a “clearly established right” to get over QI in complaint

Although an arrestee adequately alleged that members of a parish council and sheriff’s office maliciously conspired to prosecute him under an unconstitutional statute in retaliation for online comments about council members, his right was not clearly established because there was … Continue reading

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OH2: Particularity and scope of search have to be raised and litigated to preserve for review

Claims of particularity and scope of search have to be raised and litigated in the trial court to appeal them. State v. Terrell, 2017-Ohio-7097, 2017 Ohio App. LEXIS 3224 (2d Dist. Aug. 4, 2017). Tossing a gun in flight from … Continue reading

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OH6: Stop and arrest outside officer’s territorial jurisdiction does not violate state constitution

The officer knew he was outside his territorial jurisdiction when he made a stop of a suspect DUI, but this doesn’t violate the Ohio Constitution. State v. Curran, 2017-Ohio-7008, 2017 Ohio App. LEXIS 3130 (6th Dist. July 28, 2017). Lack … Continue reading

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

OR: Three on preservation of search issues at the suppression hearing

Defendant preserved his argument that officer safety was not a valid justification in his memorandum of law, and that put the state and the trial court on notice that was an issue the state had to address, and didn’t. State … Continue reading

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