Category Archives: Burden of proof

OH1: Trial court erred in not suppressing when officer couldn’t remember the basis of stop

Defendant satisfied his burden of pleading by stating the stop was without justification. At the hearing on the motion to suppress this OVI case, the officer couldn’t remember why defendant was stopped. The trial court erred in not suppressing. State … Continue reading

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N.D.Ohio: Drug lab results from controlled buy not required for PC

The government had probable cause for the search warrant for defendant’s house despite the fact that the drugs previously bought from him hadn’t come back from testing at the crime lab. United States v. Clark, 2024 U.S. Dist. LEXIS 24651 … Continue reading

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E.D.N.C.: This iCloud SW not overbroad

The warrant for defendant’s iCloud account was not overbroad. Defendant essentially admitted that the information sought would be found there. United States v. Duncan, 2024 U.S. Dist. LEXIS 11090 (E.D.N.C. Jan. 22, 2024).* Defendant was in a rental vehicle, but … Continue reading

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W.D.Ky.: Boilerplate in affidavit doesn’t matter if the critical facts show PC

Boilerplate information in the affidavit for warrant doesn’t matter as long as the critical facts show probable cause, and here they did. There were five facts supporting probable cause. United States v. Morton, 2024 U.S. Dist. LEXIS 7580 (W.D. Ky. … Continue reading

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SD: Failure to put SW materials in record means trial court presumed correct

There were two search warrants for location data and defendant’s cell phone. Without the search warrant materials in the appellate record, there’s nothing to review and the trial court is assumed to be correct. State v. Horse, 2024 S.D. 4, … Continue reading

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FL6: Trial court erred by de novo review of SW application

The trial court conducted a de novo review of the search warrant application, not seeing whether there was a substantial basis for finding probable cause. This was error. State v. Freeman, 2024 Fla. App. LEXIS 115 (Fla. 6th DCA Jan. … Continue reading

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WY: Def’s girlfriend showed apparent authority to enter their apartment after domestic dispute; Illinois v. Rodriguez redux

Officer’s reasonably relied on defendant’s girlfriend’s apparent authority to enter his apartment. She called 911 about what she described as a domestic assault where he struck her face. When police arrived, she was outside the apartment sitting on the stairs. … Continue reading

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OH5: Put the affidavit for SW in the record at the suppression hearing

The affidavit for search warrant isn’t in the record on appeal, so the court presumes the regularity of proceedings in the trial court. The record that was made shows that there was probable cause. State v. Hill, 2023-Ohio-4381, 2023 Ohio … Continue reading

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W.D.Mo.: SW found to have been served after 6 am, but even if not, no prejudice

The court’s credibility determination is that the warrant here was executed after 6:00 a.m., not before. Even if they arrived early, they didn’t enter until 6:00 a.m. “Assuming, arguendo, the officers searched Defendant’s home before 6:00 a.m., the facts demonstrate … Continue reading

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NM: State had to support search incident to arrest of def’s purse at suppression hearing and didn’t

Defendant’s purse over the shoulder was not part of her person. It was removed from her and later searched incident to arrest. The state failed to support the search incident doctrine at the suppression hearing of where the purse was … Continue reading

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CA9: Franks challenge has to include showing lack of PC

On a Franks challenge, “Defendant failed to establish that, if additional information about the informant’s credibility had been included, the affidavit would have been insufficient to establish probable cause.” United States v. Carter, 2023 U.S. App. LEXIS 22478 (9th Cir. … Continue reading

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D.Ariz.: No REP in shared folder on computer open on eMule program

The government’s “pre-search” of a shared folder on defendant’s computer available through eMule was not subject to a reasonable expectation of privacy and was reasonable. United States v. Johnson, 2023 U.S. Dist. LEXIS 146664 (D. Ariz. Aug. 21, 2023), adopting … Continue reading

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CA5: No police wrongdoing here to support “police created exigency”

Defendant came in to the police for an interview about sex assault in the Army. As it developed, exigency for seizure of defendant’s cell phone arose. This was not a police created exigency which requires some wrongdoing on the part … Continue reading

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CA6: Unintended target of a police shooting, another officer, has a 4A seizure and excessive force claim

One officer fired a gun at a suspect inside a dwelling, apparently without aiming, and hit another officer. That was still a Fourth Amendment seizure of the person of the officer despite being an unintended target. Kilnapp v. City of … Continue reading

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OH5: Pickup of visitor parked on street could be searched with SW for premises where it was suspected of drug transactions there

Defendant’s pickup was parked on the street in front of another man’s house that was searched with a warrant. His truck was searched too, but wasn’t mentioned in the warrant. “We find the search of the truck was authorized by … Continue reading

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N.D.Ind.: “If six law enforcement officers testify credibly to a story that doesn’t make sense, is the Court bound to accept that testimony?” Yes.

“If six law enforcement officers testify credibly to a story that doesn’t make sense, is the Court bound to accept that testimony? That’s the question facing the Court on Defendant’s motion to suppress. Because the Court has no basis to … Continue reading

Posted in § 1983 / Bivens, Arrest or entry on arrest, Burden of proof, Franks doctrine | Comments Off on N.D.Ind.: “If six law enforcement officers testify credibly to a story that doesn’t make sense, is the Court bound to accept that testimony?” Yes.

CA10: Govt has to be shown to have property to be ordered to return it under Rule 41(g)

The district court lacked jurisdiction to order return of property under Rule 41(g) because it could not be shown that the government was in possession of the hard drive defendant sought return of. United States v. Toombs, 2023 U.S. App. … Continue reading

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E.D.N.Y.: What’s the burden under 18 U.S.C. § 1345 v. SW issuance? Preponderance or PC?

This is a patent action involving an AR-15 trigger mechanism that can convert the gun to a machine gun. The government got involved to enjoin it. The defendants seek a transfer to W.D.Tex. which is denied. The court addresses 18 … Continue reading

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M.D.Fla.: Geofence SW decided on GFE alone

In this Hobbs Act robbery case, ATF got a geofence warrant to attempt to isolate who was committing a string of robberies in the Tampa Bay area. Instead of even considering the merits, the court goes directly to the good … Continue reading

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IA: Dashcam video not conclusive evidence of justification for stop

The dashcam video of defendant’s stop wasn’t all that clear, and the trial court credited the officer’s testimony defendant drove some on the wrong side of the road at night in snowy conditions. That’s entitled to deference, as are reasonable … Continue reading

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