Category Archives: Burden of proof

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

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

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

ME: SW not needed to photograph def’s facial injuries

Police didn’t need a search warrant to photograph injuries on defendant’s face. State v. McNaughton, 2017 ME 173, 2017 Me. LEXIS 193 (Aug. 1, 2017). There was neither reasonable suspicion for defendant’s stop nor his patdown. No facts were put … Continue reading

Posted in Burden of proof, Reasonable expectation of privacy, Stop and frisk | 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

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

NH: SW jurisdictional argument has to be presented to trial court first

Defendant’s jurisdictional argument that AOL’s emails were in Virginia and not amenable to a New Hampshire search warrant wasn’t presented to the trial court, so it’s waived. State v. Bergeron, 2017 N.H. LEXIS 143 (June 30, 2017). [Note: Jurisdiction of … Continue reading

Posted in Burden of proof, Warrant requirement | Comments Off

M.D.Ala.: Supposition isn’t enough to discredit officer’s testimony about the stop

The court finds the officer’s testimony credible: “The court is likewise unpersuaded by the defendants’ arguments that Arwood’s testimony regarding the events of the day and his reason for stopping defendants’ vehicle lacks credibility. Defendants raise a litany of concerns … Continue reading

Posted in Burden of proof, Reasonable suspicion | Comments Off

NY4: Not granting a continuance of suppression hearing for unavailable witnesses was an abuse of discretion

The trial court erred in granting the motion to suppress for the nonattendance of its police witnesses after they were subpoenaed but didn’t show. The state sought an adjournment which the trial court denied. It was the first request for … Continue reading

Posted in Burden of proof, Emergency / exigency, Motion to suppress | Comments Off

ND unconstitutionally shifts burden of proof to def to show she was not seized

A car with two passengers was pulled over for a headlight violaiton, and the driver gave a false name and had a warrant. She was arrested. A drug dog was called. The defendant passenger was free to leave at the … Continue reading

Posted in Burden of proof | Comments Off

LA: “Defendant thus was in the difficult position of having to both distance himself from the barbeque grill, if he hoped to be found not guilty of possession of the cocaine found inside it, and tie himself more closely to the grill, if he hoped to obtain a favorable ruling on the motion to suppress. Trying to do both, he succeeded at neither.”

Showing a reasonable expectation of privacy in the place searched but denying possession is a fine line indeed. Show too much of an expectation of privacy just to challenge the search [always a risky proposition] and you might put yourself … Continue reading

Posted in Burden of proof, Reasonable expectation of privacy, Standing | Comments Off

GA: Std of review: If video clear, it controls on its facts and gets de novo review

Defendant was stopped for driving a motorcycle without a helmet, and alcohol was on his breath. The objective facts from the video show the FST and breath test were consensual. “And, where, as here, the controlling facts are undisputed because … Continue reading

Posted in Burden of proof, Consent, Standards of review | Comments Off