Category Archives: Suppression hearings

NE: State failed in its burden of proof on inventory; the defense has no duty to clear up confusion in the proof

The state carried the burden, and it failed to prove that the inventory of defendant’s vehicle followed standardized procedure or was reasonable. The defense had no burden to clear up any evidentiary confusion because the state had the burden. State … Continue reading

Posted in Burden of proof, Inventory, Suppression hearings | Comments Off on NE: State failed in its burden of proof on inventory; the defense has no duty to clear up confusion in the proof

DE: Actual presence of accused not required for suppression hearing and video appearance constitutional

A virtual suppression hearing that was a mixed question of law and fact didn’t require the actual presence of the accused under the Sixth Amendment’s confrontation clause, following United States v. Rosenschein, 2020 U.S. Dist. LEXIS 129889 (D.N.M. July 23, … Continue reading

Posted in Dog sniff, Probation / Parole search, Reasonable suspicion, Suppression hearings | Comments Off on DE: Actual presence of accused not required for suppression hearing and video appearance constitutional

OH6: When lack of PC for a SW is the issue, a suppression hearing isn’t required: it’s a question of law

When the defendant moves to suppress a search warrant claiming only a lack of probable cause, a hearing isn’t required. It’s then a mixed question of law and fact (mostly law). State v. Holt, 2020-Ohio-6649, 2020 Ohio App. LEXIS 4515 … Continue reading

Posted in Franks doctrine, Standards of review, Suppression hearings | Comments Off on OH6: When lack of PC for a SW is the issue, a suppression hearing isn’t required: it’s a question of law

OR: Questions about drugs without RS during a traffic stop exceeded the basis of the stop

“ Officers conducting a traffic stop may only conduct investigation unrelated to that traffic stop if they have independent constitutional justification for further inquiries. Neither line of inquiry here (first, whether defendant had drugs, and second whether she illegally possessed … Continue reading

Posted in Reasonable suspicion, Suppression hearings | Comments Off on OR: Questions about drugs without RS during a traffic stop exceeded the basis of the stop

OH11: Trial court’s order denying unsealing SW affidavit in post-conviction case wasn’t final and appealable

In a post-conviction case, the trial court’s order denying a motion to unseal a search warrant affidavit to facilitate his case was not a final appealable order. State v. Miller, 2020-Ohio-5383, 2020 Ohio App. LEXIS 4231 (11th Dist. Nov. 23, … Continue reading

Posted in Good faith exception, Probable cause, Standards of review, Suppression hearings | Comments Off on OH11: Trial court’s order denying unsealing SW affidavit in post-conviction case wasn’t final and appealable

NY2: Failure to call officer involved at suppression hearing was waiver here

Defendant’s claim of his statement being in violation of the Fourth Amendment isn’t preserved for appeal by lack of testimony of the officer involved. People v. Molina, 2020 NY Slip Op 06553. 2020 N.Y. App. Div. LEXIS 6651 (2d Dept. … Continue reading

Posted in Reasonable suspicion, Suppression hearings, Waiver | Comments Off on NY2: Failure to call officer involved at suppression hearing was waiver here

S.D.Ohio: Not IAC to fail to call co-arrestee at suppression hearing to testify to facts of search

It wasn’t ineffective assistance of counsel for defense counsel to decline to call Smith who was also arrested at the same time to corroborate his version of events of the search. Counsel believed that Smith wouldn’t withstand reasonable cross-examination because … Continue reading

Posted in Ineffective assistance, Suppression hearings | Comments Off on S.D.Ohio: Not IAC to fail to call co-arrestee at suppression hearing to testify to facts of search

GA: Entry into def’s house for pulling a gun on somebody elsewhere wasn’t in hot pursuit and suppressed

Officers entered defendant’s home for allegedly pulling a gun on his girlfriend at another house. They weren’t in hot pursuit, and the entry was unreasonable and is suppressed. The state’s inevitable discovery argument that a search warrant would have been … Continue reading

Posted in Hot pursuit, Inventory, Suppression hearings, Waiver | Comments Off on GA: Entry into def’s house for pulling a gun on somebody elsewhere wasn’t in hot pursuit and suppressed

CA5: GFE question is reasonableness of executing officer’s belief in PC

The district court erred in finding that the search warrant here was bare bones and that the good faith exception did not apply. There was a factual basis from which a reasonable officer would conclude there was probable cause. “But, … Continue reading

Posted in Admissibility of evidence, Good faith exception, Suppression hearings | Comments Off on CA5: GFE question is reasonableness of executing officer’s belief in PC

AZ: Offer of proof would be helpful for Franks claim, and def didn’t make one here

“As noted above, however, some of these alleged omissions and misstatements are simply not supported by the record. And, the omissions that are supported by the record were not material given the strength of the evidence supporting a finding of … Continue reading

Posted in Cell site location information, Exclusionary rule, Franks doctrine, Suppression hearings | Comments Off on AZ: Offer of proof would be helpful for Franks claim, and def didn’t make one here

IA: Answering statement officer was coming in with a question was acquiescence

The state conceded that hot pursuit didn’t justify their entry and relied on consent. “Nor could Boley’s act of letting the officers in be construed as consent. When the officer said she would be coming in, Boley responded with a … Continue reading

Posted in Constitutionally protected area, Suppression hearings | Comments Off on IA: Answering statement officer was coming in with a question was acquiescence

AZ: Ex parte order in 2013 for CSLI showed PC and was constitutionally sufficient and it would be served in NJ

An ex parte court order for CSLI five years before Carpenter, and probable cause was shown. It was the functional equivalent of a search warrant. It also could be served on T-Mobile in New Jersey. State v. Conner, 2020 Ariz. … Continue reading

Posted in Cell site location information, Suppression hearings | Comments Off on AZ: Ex parte order in 2013 for CSLI showed PC and was constitutionally sufficient and it would be served in NJ

OH10: Lack of findings of fact and conclusions of law on grant of suppression motion requires remand to make them

The trial court’s grant of suppression is reversed and remanded because of its inadequate findings of fact and conclusions of law for appellate review. State v. Peeks, 2020-Ohio-889, 2020 Ohio App. LEXIS 812 (10th Dist. Mar. 10, 2020). Defendant officers … Continue reading

Posted in § 1983 / Bivens, Probable cause, Probation / Parole search, Suppression hearings | Comments Off on OH10: Lack of findings of fact and conclusions of law on grant of suppression motion requires remand to make them

N.D.Miss.: Issuing USMJ can’t be subpoenaed to testify to mental impressions in issuing SW

Defendant doesn’t get to subpoena the issuing magistrates for the search warrant because their mental impressions are irrelevant and whether a telephonic warrant was avoidable by essentially shopping for a different judge. Nevertheless, the issue is held in abeyance since … Continue reading

Posted in Suppression hearings | Comments Off on N.D.Miss.: Issuing USMJ can’t be subpoenaed to testify to mental impressions in issuing SW

OH2: Hearsay is admissible in a suppression hearing, and the trial court erred in sustaining the state’s objection to hearsay, but it was harmless on the totality

The state objected to hearsay to a defense question at the suppression hearing, but hearsay is admissible in suppression hearings under Rule 104(a). Here, however, it was harmless error. The lack of prejudice thus results in there being no ineffective … Continue reading

Posted in Suppression hearings | Comments Off on OH2: Hearsay is admissible in a suppression hearing, and the trial court erred in sustaining the state’s objection to hearsay, but it was harmless on the totality

Law.com: Analysis: Reopening Suppression Hearings: The Trilogy Is Complete

Law.com: Analysis: Reopening Suppression Hearings: The Trilogy Is Complete (“In his Criminal Law and Procedure column, Barry Kamins discusses a recent decision, ‘People v. Cook’, which is the last of a trilogy of decisions that began over 40 years ago, … Continue reading

Posted in Suppression hearings | Comments Off on Law.com: Analysis: Reopening Suppression Hearings: The Trilogy Is Complete