Category Archives: Burden of proof

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

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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

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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

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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

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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

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MT: Admission at a game checkpoint wasn’t “in custody”

Defendant was stopped at a game checkpoint and admitted to placing his daughter’s tag on a deer he shot. He was not “in custody” when he confessed. State v. Maile, 2017 MT 154, 2017 Mont. LEXIS 350 (June 23, 2017). … Continue reading

Posted in Burden of proof, Roadblocks | Comments Off

IA: Consent valid based on testimony despite bodycam not picking up voices

The bodycam didn’t pick up the officer’s voice, which is “troubling,” but the trial court credited the officers’ testimony defendant consented, and that’s enough to have to affirm on consent. State v. Klinger, 2017 Iowa App. LEXIS 633 (June 21, … Continue reading

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OH9: Potential working meth lab was exigency for entry

Officer’s seeing meth through window and then bottles used for making meth suggested making methamphetamine which is recognized as an exigency. State v. Secriskey, 2017-Ohio-4169, 2017 Ohio App. LEXIS 2217 (9th Dist. June 7, 2017). Defendant gets limited discovery of … Continue reading

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

MI: Search of def’s car was harmless compared to uncontested search of house

Even if the search of defendant’s car violated the Fourth Amendment, the uncontested search of his house did not, and that provides overwhelming evidence of guilt. Thus, the car search is harmless at best. Johnson v. State, 2017 Miss. App. … Continue reading

Posted in Burden of proof, Probable cause | Comments Off

E.D.Wis.: Gov’t didn’t show abandonment of package by sender because of error in address where recipient refused it

The USPS Postal Inspector did not act reasonably in determining that the package with methamphetamine was abandoned. The recipient disclaimed any interest in it, and the investigation into the sender, who would still have an interest in it, was woefully … Continue reading

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